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kokoy
Feb 28, 2010, 01:41 PM
Hello,
I'm a non-US citizen (from the Philippines) here in the US on H1B visa since Sept 16. I've been to the US in 2008 3x and 1 other trip in 2009 under B1/B2 visa:

2009 sept 16 to dec 31 (H1B) 106 days
jun - July (B1/B2) 41 days

2008 oct - dec 26 (B1/B2) 87 days
apr - may (B1/B2) 37 days
jan (B1/B2) 16 days

should I file as dual status or resident alien? Can I make first year choice to 2008 so that I can file as resident alien for 2009? I'm not married so I don't have the other option of electing as resident alien.

Thanks.

Five Rings
Mar 1, 2010, 07:10 AM
You are a nonresident alien. File a 1040NR for 2009.

You have not satisfied the substantial presence test.

kokoy
Mar 1, 2010, 07:30 AM
Thank you. Just to clarify, my presence under B1/B2 doesn't count for the substantial presence test? I thought under B1/B2 Im a non-exempt indivudual. Or is it just B1?
Thanks.

Five Rings
Mar 1, 2010, 09:03 AM
Forgive me; I misread your post.

Your stay in 2008 is divided by 3.
Thus, 140/3=47 days.
2009=147
Total for 2008-09=194
You file in 2009 as resident on a 1040.

kokoy
Mar 2, 2010, 05:50 AM
Forgive me; I misread your post.

Your stay in 2008 is divided by 3.
Thus, 140/3=47 days.
2009=147
Total for 2008-09=194
You file in 2009 as resident on a 1040.

Thanks Five Rings. Do I still need to pass a first year choice statement with form 1040?

Five Rings
Mar 3, 2010, 04:45 AM
You may not make a first year choice for 2008 as you were not present for 75% of the days starting in April.
See pub 519:
First-Year Choice
If you do not meet either the green card test or the substantial presence test for 2007 or 2008 and you did not choose to be treated as a resident for part of 2007, but you meet the substantial presence test for 2009, you can choose to be treated as a U.S. resident for part of 2008. To make this choice, you must:

Be present in the United States for at least 31 days in a row in 2008, and

Be present in the United States for at least 75% of the number of days beginning with the first day of the 31-day period and ending with the last day of 2008. For purposes of this 75% requirement, you can treat up to 5 days of absence from the United States as days of presence in the United States.

MukatA
Mar 3, 2010, 05:40 AM
You are resident for 2009. You do not need to make First Year Choice.

kokoy
Mar 3, 2010, 07:55 AM
Thanks for all your help! :)