substantial presence and the standard deduction


M

marko.online

I know several Indians (non-res aliens) who are in the US on
H1-B visas and have been in country for the last 3 years or
more. They've all applied for their green cards, of course,
to continue the Gravy Train.

It seems that all of them had used the standard deduction on
their returns and didn't even use 1040-NR's. I see that
since they met the substantial presence test, they can in
fact use the 1040. However, does a positive substantial
presence test mean that they can take the standard deduction
as well? The Publications 17 and 519 clearly state that a
non-resident alien can't use the standard deduction, but its
not clear that you'd be considered a resident alien for
purposes of this issue (thereby eligible for the standard
deduction) if you pass the substantial presence test.
 
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A

A.G. Kalman

I know several Indians (non-res aliens) who are in the US on
H1-B visas and have been in country for the last 3 years or
more. They've all applied for their green cards, of course,
to continue the Gravy Train.

It seems that all of them had used the standard deduction on
their returns and didn't even use 1040-NR's. I see that
since they met the substantial presence test, they can in
fact use the 1040. However, does a positive substantial
presence test mean that they can take the standard deduction
as well? The Publications 17 and 519 clearly state that a
non-resident alien can't use the standard deduction, but its
not clear that you'd be considered a resident alien for
purposes of this issue (thereby eligible for the standard
deduction) if you pass the substantial presence test.
If you are a resident alien for tax purposes (pass the
test), then you file your tax returns in the same manner as
US citizens and permanent residents.

In addition, I take umbrage in your comment regarding a
"gravy train" as the reason that nonresidents apply to
become permanent residents of the U.S.
 
M

marko.online

I didn't intend any harm in my words regarding the gravy
train. I used this phrase because of the built-in fallacy
of the H1-B program limits.

An H1-B alien simply has to apply for his green card and
(for the most part) he's free to stay regardless of H1-B
limits. I'm an IT consultant and have found my pay being
cut due to overseas workers coming in and taking jobs.
 
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B

Bryan Kellar

I know several Indians (non-res aliens) who are in the US on
H1-B visas and have been in country for the last 3 years or
more. They've all applied for their green cards, of course,
to continue the Gravy Train.
You appear confused. While there is some correlation
between a person's immigration status and their tax status,
they are determined through independent means.
It seems that all of them had used the standard deduction on
their returns and didn't even use 1040-NR's. I see that
since they met the substantial presence test, they can in
fact use the 1040. However, does a positive substantial
presence test mean that they can take the standard deduction
as well? The Publications 17 and 519 clearly state that a
non-resident alien can't use the standard deduction, but its
not clear that you'd be considered a resident alien for
purposes of this issue (thereby eligible for the standard
deduction) if you pass the substantial presence test.
If you're a non-resident, you follow the rules for a
non-resident. If you file as a resident, you get to claim
all of the benefits of filing as a resident. In return, you
also have all the responsibilities of filing as a resident
(for example, needing to report all of your worldwide
income).

This may or not apply, but there IS a provision in the
US-India Tax Treaty that allows students or business
apprentices from India to claim the Standard Deduction on
their Form 1040-NR (Pub 519 p24).

Bryan

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