Which Tax Form Should I Use for 2024 – 1040-NR or 1040?

[chepurkomc]

Hi everyone,

I’m looking for guidance on which tax form I should use to file my taxes for the 2024 tax year.

• I arrived in the U.S. in December 2022 on an F-1 student visa.

• In February 2023, I started working on campus at my university.

• In December 2023, I applied for asylum. Six months later, I received an EAD card based on the asylum application, which allowed me to work off-campus.

• In May 2024, I graduated from UAA and received an EAD through OPT (valid for one year). I began working off-campus under this status.

• I have been continuously present in the U.S. since December 2022 (about 2.5 years now).

• My asylum case is still pending, and there has been no final decision or court hearing yet.

• For the 2023 tax year, I filed using Form 1040-NR as a nonresident alien.

My question is:
For the 2024 tax year, should I still use Form 1040-NR, or do I now qualify to file as a resident alien using Form 1040?

Any help or guidance is much appreciated — especially if someone has been through a similar situation!

Thank you!

[JohnB5677]

It sounds like you should file a 1040.

Please see Resident and nonresident aliens

You're considered a resident alien for a calendar year if you meet the green card test or the substantial presence test for the year.

Green card test

• You're considered to have met the green card test, and are therefore a resident alien, 
• if at any time during the calendar year you are a lawful permanent resident of the United States according to the immigration laws, 
• and this status hasn't been revoked or administratively or judicially determined to have been abandoned.

Substantial presence test

You satisfy the substantial presence test, and are therefore treated as a resident alien for a calendar year, if you have been physically present in the United States on at least:

• 31 days during the current year, and
• 183 days during the 3-year period that includes the current year and the 2 years immediately preceding the current year. To satisfy the 183-day requirement, count:
  • All of the days you were present in the current year,
  • One-third of the days you were present in the first year before the current year, and
  • One-sixth of the days you were present in the second year before the current year.

[chepurkomc]

Thanks for your response! Yes, my immigration attorney told me the same thing.

But I’m still technically maintaining my F-1 student status, and I’ve been in the U.S. for less than 5 years. I'm currently on OPT, which is still part of the F-1 program.
Even though I applied for asylum in December 2023 and received an EAD based on that, my asylum application is still pending — and it hasn’t changed or terminated my F-1 status. I’m still fully complying with the conditions of the F-1 visa.

So here’s the dilemma I’m facing:

• If I file Form 1040-NR for 2024, I’m in line with the IRS rules for F-1 students (since I’m still within the 5-year exemption period).
• But from the asylum point of view, it might look inconsistent — because I’m reporting myself as a nonresident alien even though I’ve declared intent to stay in the U.S. permanently.

On the other hand:

• If I file Form 1040, it may align better with my pending asylum case (as someone intending to become a resident),
• But it could raise questions about whether I’ve abandoned my F-1 status, which I haven't.

I feel caught between two systems — IRS guidelines for F-1 students and the implications of my asylum claim.
Do you (or anyone else) have thoughts on how best to navigate this situation?

Really appreciate any input!

[SusanY1]

Form 1040-NR is the proper tax return for you to file in this case.  While the same terms are used "resident alien" and "nonresident alien" they don't have the same meaning on the tax returns as they do in the immigration system. 

For tax purposes you are still a nonresident alien. 

Unless the immigration courts or your immigration attorney have requested that you file differently, this is the proper way for you to file until you meet the qualifications for the "substantial presence test".