I have a question about my alien status.
I'm here with an HB1 Visa since last year( 2011) , but I have been in the pass two years ( 2009 and 2010) in USA like a tourist with no visa,waiver tourist program.
So when I make the "substantial presence test" to check my residence status do I have to consider the days I was here in 2009, 2010 like tourist? Am I a resident alien or non resident alien?

Thanks

I have a question about my alien status.
I’m here with an HB1 Visa since last year( 2011) , but I have been in the pass two years ( 2009 and 2010) in USA like a tourist with no visa,waiver tourist program.
So when I make the "substantial presence test" to check my residence status do I have to consider the days I was here in 2009, 2010 like tourist? Am I a resident alien or non resident alien?

Thanks

Tourists that stay beyond 6 months without a visa to stay longer are illegals, not tourists. Resident and non-resident alien status both assume you have some legal right to be here. You weren't.

I'm in a legal right.
Sorry I'll explain better my question.
I was here for less than 90 days, exacly 8 days in 2009 and 4 weeks in 2010 and almost 365 days on HB1 in 2011.
According to a substantial precence test if I consider the day I was here like a tourist I'm over 183 so I should be a resident alien. But I'm not sure if I have to count or not that days since I didn't have visa

OK, thanks for the clarification.. its important, it had appeared you meant something different. This delves into more details than I know... someone will be able to give a specific answer knowing the details.

You were a resident for only PART of the year, so, for 2011, you will need to file a dual-status return UNLESS you are married.

Note that the dual-status return is NOT for amateurs; get professional help from a tax professional with experience filing such returns.

If you my professional help, double-click on my title above and scroll down to my profile/signature. You will find my email address there.