Resident vs Non-resident Alien

[shalacoglu]

Hi, I entered the first time the US with a j-1 student visa in December 2015, I was in the US until June 2016. This visa expired in July 2016. Then I moved to England and I came back to the US in May 2019 with another J-1 Student visa again for Ph.D. So the problem is I didn't change the type of my visa, I entered more than 5 years from now and I was in the US for more than 183 days with two different J-1 Student Visa. Should I prepare my tax return as a resident alien or non-resident alien??

[LinaJ2020]

For year of 2020, you are still considered as a nonresident for tax purposes. Here is why:

Per IRS, "you will not be an exempt individual as a student if you have been exempt as a teacher, trainee, student, Exchange Visitor, or Cultural Exchange Visitor on an "F, " "J, " "M, " or "Q " visa for any part of more than 5 calendar years, unless you establish to the satisfaction of the IRS that you do not intend to reside permanently in the United States, and you have substantially complied with the requirements of your nonimmigrant status."

See IRS link:  Students not exempt

In your case, you are exempt for five years ( 2015, 2016, 2019, 2020 and 2021).  Therefore you will be filing a Form 1040NR for those years.  You can file as a resident starting from year of 2022 if you meet the 183 days SPT test. As TurboTax does not support nonresident returns, I would suggest you to visit Sprintax to complete your filing.

[shalacoglu]

Thank you. 👍

[JoannaB2]

Yes, for tax federal tax purposes, since you've been in the US for more than 183 days, you may file your income tax return as resident alien using Substantial Presence Test.  There are two ways to be considered resident alien in the US:

1. Green card test - residency starting date is the first day of your physical presence in the US. after you acquired your green card.
2. Substantial presence test - you are present in the US for 31 days during the current year, and 183 days for the 3 year period including the current year. 

See, IRS substantial test, link for more information.

[shalacoglu]

One says something, another says the opposite. So, who is accurate? 

[ReneeM7122 · Accepted solution]

If you meet the substantial presence test, then you will file a 1040 as a resident alien.

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test.  It does not matter that you had two different student visas.  As long as you were physically present, you file taxes as a resident alien.

You meet the test on item 1 and 2 below, so you must file a 1040.

Substantial Presence Test

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. 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.

[shalacoglu]

Thank you 😇😇😇