Discussion:Dual Status/Resident Alien - Closer Connection Exception
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Discussion Forum Index --> Advanced Tax Questions --> Dual Status/Resident Alien - Closer Connection Exception
Discussion Forum Index --> Tax Questions --> Dual Status/Resident Alien - Closer Connection Exception
| 7 July 2008 | |
| I have a question about Form 8840, part 1, question 6. The question states, "During 2007, did you apply for, or take other affirmative steps to apply for, lawful permanent resident status in the United States or have an application pending to change your status to that of a lawful permanent resident of the United States?"
I have a client that says his "green card work was all done in 2006 and is in queue, not to be confused by the period called 'pending for adjustment of status' which does not happen until I get my greencard, at which time I will apply for a change in status." I understand the question to mean if the client has a green card pending regardless of what year the application was filed, even if still in "queue" that they would have to answer "yes" to the question, and thus disqualifying them from claiming the closer connection exception. This is a form that must be signed under penalties of perjury. I don't think my client qualifies because he has a green card pending, regardless of what year the form was filed and "in queue" to me, means pending. I'm having some problems convincing the partner on the job and the client that he doesn't qualify. Can someone point me somewhere to give me some hard proof to show that he doesn't qualify if he has a green card pending? | |
| 7 July 2008 | |
| I agree entirely. When the client gets his green card his status has already changed. He does not apply for change in status after receiving a green card. The closer connection exception rule would be ridiculous if you couldn't rely on it in a year that you apply for a green card but you could rely on it in the following year while the application is pending but the green card hadn't yet been issued. The whole idea of the closer connection exception is that you have a "closer connection" to another country. It is difficult to say with a straight face that you have a closer connection to another country when you have spent more than 183 days in the U.S. during the year and you have applied to be a permanent resident of the U.S. | |
| 8 July 2008 | |
| Under Reg ยง301.7701(b)-2, the closer connection exception is not available if the taxpayer filed any of the following forms: I-508, I-485, I-130, I-140, ETA-750, or OF-230, or he has taken affirmative steps to change his status to lawful permanent resident during the current year. | |
| 8 July 2008 | |
| I note that the Reg states:
"(f) Closer connection exception unavailable. An alien individual who has personally applied, or taken other affirmative steps, to change his or her status to that of a permanent resident during the current year or has an application pending for adjustment of status during the current year will not be eligible for the closer connection exception. Affirmative steps to change status to that of a permanent resident include..." In my case an I-130 was filed in 2004. Current processing times would indicate the petition to be granted in approximately 2020 to 2025. (Oddly waiting several more years may fit well with my anticipated retirement plans!) Given that nothing is happening during the current year my understanding is that this Reg only applied to 2004. Is this a correct reading? | |
| 11 July 2008 | |
| Your partners should also realize that claiming closer ties and connections to another country and/or making a treaty claim of residence in another country can jeapordize the status of the greencard by the INS. The INS can request the taxpayer furnish the INS with copies of their IRS returns, and if they notice such a claim, they can deny or revoke the greencard. In your client's case, paying a bit of extra tax may be worth the elimination of this potential legal risk later on. You should discuss with his immigration attorney whether or not making such a claim will cause problems with his greencard application. If he loses out because of your actions, you could be sued. | |
