Tax Day—April 15—is fast approaching. Even if you’re not a U.S. citizen, you must file a tax return if you’re considered a “resident alien” for tax purposes.
Like U.S. immigration law, U.S. tax law is complicated. We only practice U.S. immigration law, so this consists of a compilation of information from the Internal Revenue Service (IRS), including its U.S. Tax Guide for Aliens, and other websites. It is not intended as legal advice. Please contact a tax attorney, accountant, or the IRS for assistance.
Green Card Holders
The IRS considers all green card holders “resident aliens”—or tax residents—and must file a federal tax return and a state tax return if their home state levies an income tax. That means if you have a green card, you must report all income you earn including income earned outside the U.S. on your tax returns.
Immigrants without a green card must file tax returns if they meet the substantial presence test. You meet the test if you are present in the U.S. at least:
- 31 days during the current tax year and
- 183 days during the three-year period that includes the current tax year and the two preceding years. Calculate this by counting:
- All the days you were present in the current tax year, and
- One-third of the days you were present in the first year before the current tax year, and
- One-sixth of the days you were present in the second year before the current tax year.
For example, say you were in the U.S. for 125 days in each calendar year 2016, 2017, and 2018. To determine whether you must file a tax return for 2018, you count:
- 125 days present in 2018.
- 42 days (⅓ of 125) in 2017.
- 21 days (⅙ of 125) in 2016.
The three-year total is 188 days, which means you must file a tax return for 2018.
Your visa status may determine whether some of your days in the U.S. will not count as days of presence. Do not count days when you were a:
- Foreign government-related individual under an A or G visa, except for those holding A-3 or G-5 visas.
- Teacher or trainee temporarily in the U.S. under a J visa or Q visa.
- Student temporarily in the U.S. under a student visa.
- Professional athlete temporarily in the U.S. under a B visitor visa, P-1A or O-1A visa to compete in a charitable sports event.
If you fall into any of these categories or because you were unable to leave the U.S. due to a medical condition, you must submit Form 8843 to the IRS with your income tax return or on its own if you are not required to file a return.
Exemptions for Visa Holders
You may be treated as a “nonresident alien” if you have not applied for a green card and qualify for one of the following exceptions:
- You have a closer connection to a foreign country than to the U.S. and maintain a tax home in this foreign country during the year.
- You’re a student who does not intend to reside permanently in the U.S. and has a closer connection to a foreign country than to the U.S.
There are other exemptions to the tax rules based on tax treaties between the U.S. and your home country.
Things to Keep in Mind
A resident alien can claim the same deductions and credits as U.S. citizens. If you had too much in taxes taken out of your paycheck, you will receive a refund. If you did not have enough taxes taken out of your paycheck, you will pay more.
Many tax credits are available to those with qualifying dependents. If your dependents don’t have social security numbers, you can get individual tax identification numbers (ITINs) for them. You can use these numbers to add your dependents to your tax return.
Failing to follow U.S. tax laws can lead to criminal punishment, revocation of your green card or visa, and deportation. On the other hand, a history of paying taxes can help in the process of becoming a U.S. citizen. U.S. Citizenship and Immigration Services (USCIS) considers immigrants who pay taxes to have good moral character and a contributing member of society.