Tax Law Things to consider Relating to U.S. Immigration Status

Wiggin and Dana’s Immigration and Nationality Law and Compliance Exercise Group addresses the spectrum of company immigration needs for employers and related people today, including the incidental compliance areas that intersect with immigration regulation. Tax law is a person this sort of region. As we begin a new year, we are delivering a swift refresher on some most important tax regulation considerations connected to U.S. immigration status. Of course, it is imperative to consult with with immigration and tax advisors to guarantee compliance in both equally regions.  

For U.S. federal income tax applications, the Interior Profits Provider (“IRS”) categorizes people today into 3 groups: 1) U.S. citizens, 2) resident aliens, and 3) nonresident aliens.  Just about every group is topic to diverse policies with regard to U.S. tax payment and filing obligations, and there are various withholding requirements for payments produced to men and women in distinctive groups.  The dialogue under will concentrate on the U.S. tax concerns for resident aliens or nonresident aliens.  All persons operating in the U.S. ought to be knowledgeable of who, and who is not, a resident for tax functions.  Additional, it is probable to be both equally a resident alien and nonresident alien in the same year, typically the 12 months that an person arrives in the U.S.  Such folks have “dual status” for that 12 months and should really seek the advice of with a tax advisor about the specifications involved with that standing.

Resident Aliens

An unique does not need to have to be a U.S. citizen to be considered a “resident” for U.S. tax reasons.  An unique that is not a U.S. citizen will be a resident alien if these individual fulfills both of two assessments: the “green card” examination or the “substantial presence” exam. The green card test is happy if, at any time all through the calendar 12 months, the person obtains lawful permanent resident standing in the U.S. (an alien registration or “green card”) issued by the U.S. Citizenship and Immigration Solutions.  Alternatively, an person satisfies the considerable presence test for 2021 if this sort of particular person is physically current in the U.S. on at minimum (1) 31 days in 2021 and (2) 183 times all through the 3-12 months period that involves 2021, 2020 and 2019, counting:

  1. All times current in 2021

  2. 1/3 of the times current in 2020 and

  3. 1/6 of the days existing in 2019. 

Once an specific will become a resident alien, all around the globe income becomes issue to U.S. taxation. This implies that all curiosity, dividends, wages, or other compensation for products and services, profits from rental home or royalties, and other kinds of earnings, ought to be documented on U.S. tax returns.

Nonresident Aliens

A nonresident alien is any non-U.S. citizen who is not a resident alien. There are several various visas out there to nonresident aliens investing time in the U.S.  Even though the unique tax cure of nonresident aliens normally depends on the individual’s visa position, a nonresident alien generally is matter to U.S. federal earnings tax only on U.S.-resource revenue. 

A nonresident alien who is paying time in the U.S. and gets U.S. supply earnings should file taxes on sort 1040NR (or, if skilled, 1040NR-EZ). A nonresident alien will be demanded to enter an “Identifying Number” on the tax return, and if s/he is not suitable for a Social Stability Amount, s/he need to apply for an ITIN (specific taxpayer identification quantity).

It is also important to take into consideration non-revenue taxes, these kinds of as federal unemployment taxes (frequently referred to as “FUTA”) and federal taxes that fund Social Stability and Medicare courses in the U.S. (normally referred to as “FICA”).  These are taxes that are compensated on wages.  Only employers are accountable for paying unemployment tax, while taxes for FICA are paid in element by companies and in portion by employees.  The worker’s portion of the FICA tax commonly is withheld from such worker’s paycheck.

Nonetheless, sure nonresident aliens are not topic to FICA tax and businesses of these nonresident aliens are not obligated to shell out possibly FICA tax or unemployment tax with regard to these persons. Illustrations of nonresident aliens not topic to these taxes contain students, students, academics, professors, researchers and other aliens quickly existing in the U.S. in F-1, J-1, M-1, or Q-1/Q-2 nonimmigrant position. 

In scenarios where nonresident aliens are essential to pay out FICA tax, these types of nonresident aliens ought to be informed of agreements referred to as “totalization agreements” that the U.S. has entered into with a selection of other international locations, the purpose of which is to stay clear of double taxation with regard to social safety contributions.  Now, these agreements exist involving the U.S. and the adhering to nations: Australia, Austria, Belgium, Brazil, Canada, Chile, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Eire, Italy, Japan, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay. 

Accidental Individuals

In accordance to U.S. legislation, all U.S. folks (citizens, green card holders, and people) are expected to file an once-a-year tax return if their money exceeds a particular volume set by the IRS every calendar year, no matter of where by they reside or the source of their cash flow.  This is because of to the U.S.’s reasonably exceptional around the globe taxation scheme basing taxation on position in the U.S. and bodily presence rather than source of income or normal home.[1]

U.S. taxation on all over the world cash flow can arrives as a shock, in individual to the colloquially termed “Accidental People in america.” These people residing overseas are U.S. citizens by beginning, and are normally unaware of their U.S. citizenship. The “accidental” citizenship can arise by start in the U.S. or by start abroad to at the very least one U.S. citizen mother or father. In several instances, the Accidental American has only briefly, or in no way, lived in the U.S,. and is also a citizen of a international region. These people generally only comprehend that they are U.S. citizens when a problem occurs, these kinds of as the loss of life of the U.S citizen guardian triggering inheritance and estate assessment, the denial of a personal loan, or the receipt of tax delinquency notification from the IRS. In addition, inexperienced card holders who have moved abroad and whose actual physical eco-friendly cards could have expired but who have not renounced or misplaced their position in the U.S. may well slide into this category.

Though the U.S.’ globally taxation composition is not new, prior to 2010 the IRS did not normally implement tax necessities for Accidental People.  In 2010, Congress handed the International Account Tax Compliance Act 2010 (FATCA) to implement current tax rules.  FATCA released additional reporting requirements for both equally folks and institutions, this kind of as financial institutions, and termed for improved enforcement. 

FATCA’s implementation has led to a renewed concentrate on tax compliance for all U.S. citizens and green card holders living abroad, regardless of irrespective of whether they are “Accidental Americans” or only unaware of their worldwide tax demands as citizens/eco-friendly card holders. All individuals with everlasting U.S. standing abroad should be mindful of their worldwide tax and reporting responsibilities. Due to the fact tax duties differ by place and may be impacted by tax treaties, home/citizenships or other instances, tax and immigration advisors must be confident to have a full knowing of an individual’s citizenship(s) and residency in order to comprehensively evaluate an individual’s tax obligations/prerequisites.

Workers with L-1 or H-1B Visa Position

Because of to the size of time some L-1 and H-1B visa holders continue being in the U.S., it is probable that they changeover from being nonresident aliens to resident aliens (and as a result ought to begin to file Type 1040 tax returns with the IRS). It is even possible, noting the formulation earlier mentioned, that an staff on an L-1 or H-1B visa gets a tax resident of the U.S. during the very first calendar year invested in the U.S.  If so, s/he is necessary to file a tax return as a “dual-standing alien,” or, far more basically, as an particular person who is both equally a resident and a nonresident for any offered calendar year.

At the time an person on an L-1 or H-1B visa becomes a resident for U.S. tax functions, s/he need to evaluate regardless of whether his/her home nation has a tax treaty with the U.S. to prevent double taxation. Some countries have to have a “certification of residency (Sort 6166)” to just take benefit of such treaties. To obtain the Variety 6166 certification or a letter of U.S. residency certification, an particular person really should entire Kind 8802, Application for United States Residency Certification.

Other Ideas to Take into account

In addition to the points discussed above, there are other places where by tax legislation and immigration legislation overlap.  Tax and immigration advisors can help in processing these intricate regions of legislation inside an individual’s distinct scenario and circumstances.  These locations involve, but are not restricted to: 1) tax treaties among the U.S. and other countries, which may perhaps provide to reduce each the price of withholding and the true tax owing on particular U.S.-source revenue 2) the “exit tax” relevant to U.S. citizens and specific everlasting inhabitants wishing to expatriate from the U.S. and 3) U.S. estate tax and inheritance taxes relevant in numerous countries exterior the U.S.


Tax and immigration laws are complex. Anyone impacted by these legislation may perhaps evaluation IRS Publication 519 U.S. Tax Guidebook for Aliens, and must consult with with tax and immigration advisors with regards to personal situations, together with classification as a resident or nonresident alien, regardless of whether any specific procedures utilize as a end result of family interactions with U.S. citizens, no matter if and how tax treaty benefits utilize, and what income must be taxed in the U.S. 

[1] As pointed out higher than, a “resident” is anyone who fulfills the IRS “substantial presence” examination for the calendar calendar year.  In addition, the U.S. taxes U.S. citizens and inexperienced card holders on their all over the world earnings even if they have not resided in the U.S. for a lot of a long time.