I was in the US on a student visa from 2001-2007. I spent 4 months in 2007 and my immigration petition is pending. Must I file as dual status or resident?

In 2006, I filed as a resident alien (sixth year)

I have asked this question several times and no one answered.
I was on J1 visa for 6 years and 4 month. On my sixth year, I filed as resident alien.
FOR LAST YEAR, I spent 4 months. Should I file as a resident?

Were you outside the US for the remainder of 2007 (other than the 4 months in which you were here)? When you say your immigration status is pending, what exactly do you mean - have you applied for a green card, is that what you mean?

Quote:

---

Originally Posted by The Texas Tax Expert

Were you outside the US for the remainder of 2007 (other than the 4 months in which you were here)? When you say your immigration status is pending, what exactly do you mean - have you applied for a green card, is that what you mean?

---

Yes, I left the US after the first 4 months of 2007. I am now overseas. I applied to the government for labor certification on January 2008. But, lawyer did all paper work and recruitment (prelabor approval form) on October 2007 and then filed the application this year.

It looks to me like you have a dual status situation going on. Unless you are a resident in 2008 and thus you have residency continuity, it looks to me like your residency really did cease at April 2007. I assume you've re-established residency in your home country?

Quote:

---

Originally Posted by The Texas Tax Expert

It looks to me like you have a dual status situation going on. Unless you are a resident in 2008 and thus you have residency continuity, it looks to me like your residency really did cease at April 2007. I assume you've re-established residency in your home country?

---

Thanks for your reply. I returned to my home country, but my application for labor certification has been approved and my immigrant petition is now pending. Does this prove that I have a closer connection to the US.

If you still believe that I have a dual status, will the IRS not accept me to file as a resident alien?

Quote:

---

Originally Posted by The Texas Tax Expert

It looks to me like you have a dual status situation going on. Unless you are a resident in 2008 and thus you have residency continuity, it looks to me like your residency really did cease at April 2007. I assume you've re-established residency in your home country?

---

Thanks for your reply. I returned to my home country, but my application for labor certification has been approved and my immigrant petition is now pending. Does this prove that I have a closer connection to the US.

If you still believe that I have a dual status, will the IRS not accept me to file as a resident alien?

I contacted before A CPA to file for me as a dual status, but he refused and wanted me to file as a resident. Is he right? I am not sure and want to see the proper thing so that I can get the right CPA.

Yes, if you've actually applied for a green card, then you really don't have the closer connection to a foreign country, although it didn't sound like you'd actually started that process by the end of 2007. I think you have solid grounds to claim your residency continued (file as a resident the full year) but you will of course have to include your foreign income on your US tax return. Claim a foreign tax credit.

Thanks a bunch for your response regrading my seventh year.
On my sixth year as a J1 (2006), I filed as a resident. I spent 365 days in 2006 in the US.
I have just read in publication 519 that if a J1 student works and complies with the requirements of his visa and will return to his home country , he can file as a non-resident even if he spent more than 5 years.

Is this right? Should I file an amended return and by this way I can get a refund of medicare and social security taxes.