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.

You are a nonresident alien. File a 1040NR for 2009.

You have not satisfied the substantial presence test.

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.

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.

Quote:

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Originally Posted by Five Rings

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.

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

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.

You are resident for 2009. You do not need to make First Year Choice.

Thanks for all your help! :)