Hi,

I'm a Chinese citizen and came to the US on F1 visa in Sept 2001, then spent 5 years in PhD study. In August 2006, I became an assistant professor at a university. I got my green card in Sept 2008. My question is -- can I still get exempted from tax for the period of Aug 06 to Sept 08, under the US-China tax treaty, article 19?

Article 19 (Teachers, Professors and Researchers) says -- An individual who is, or immediately before visiting (USA) was, a resident of (China) and is temporarily present in (USA) for the primary purpose of teaching, giving lectures or conducting research at a university... in (USA) shall be exempt from tax in (USA) for a period not exceeding three years in the aggregate in respect of remuneration for such teaching, lectures or research.

I know that before I became an assistant professor, I had been in the USA as a student for 5 years when I claimed exemption under article 20. However, article 19 says "immediately before VISITING USA, was a resident of China...", ", (not "immediately before BECOMING a professor in USA, was a resident of China... "). So my understanding is that I still qualify, because immediately before visiting the USA (Sept 2001), I was a resident of China.

Also, although now I have green card, I was on either OPT or H1b from Aug 06 till Sept 08. So I should be regarded as "temporarily present" during that period. And that period was less than 3 years.

Can any expert help me with this? Thanks

Negative.

When you got the Green Card, you forfeited all rights under the tax treaty and must pay taxes just like any U.S. citizen.

This is retroactive?

Yes, for the 2008 tax year!

2008, I can understand.
But I thought Fan was also asking about 2006 and 2007.

F1 is student visa. For Teachers, Professors and Researchers there is J1 visa. On F1 you can not get treaty benefits meant only for J1 visa.

Now I understand what you were asking.

I assume he filed as a non-resident alien for 2006 and, at the time, that was probably the correct way to file under "maintaining a closer connection to his home country." However, that argument became moot when he filed for the H-1B visa, because submitting for sucha visa clearly shows NO closeer connection.

So, for 2006 and 2007, he should NOT have claimed the $5,000 treaty exemption authorized under Articles 19 or 20. To be legal, he should go back and amend his returns for those years, filing as a resident alien and "unclaiming" the $5,000 treaty exemption.

Whether he does so or not is entirely up to him.