East Grand Forks, MN asked in Tax Law, Immigration Law and International Law for North Dakota

Q: I have an H2A worker that is on our farm since 2023 and needs advise on filing income tax responsibilities

He is waiting on a green card so will continue to stay here till 2025 hoping by then he has his green card. He also did not file taxes in his country in 2021 and 2022 when he went home. Our agent said we did not need to withhold taxes but now that he is staying here and we do not have a tax treaty with south africa I am concerned with his responsibilities.

1 Lawyer Answer
James L. Arrasmith
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  • Immigration Law Lawyer
  • Sacramento, CA

A: Understanding and complying with tax laws is crucial, especially for H2A workers like the one on your farm. Since he is from South Africa and has been working in the U.S., he may need to file U.S. income taxes, despite the lack of a tax treaty between the U.S. and South Africa. The requirement to file depends on various factors, including the amount of income earned and his residency status for tax purposes.

It's important to clarify that H2A visa holders are generally required to pay taxes on income earned in the U.S. If your agent advised that taxes should not be withheld from his wages, it would be wise to reassess this situation, especially since he plans to stay in the U.S. for an extended period. He should gather all relevant documents, such as W-2 forms or other wage statements, and consider his tax filing status and any deductions or credits he may be eligible for.

Lastly, while it's concerning that he did not file taxes in his home country for the years 2021 and 2022, focusing on his U.S. tax obligations is the immediate priority. He might want to consult with a tax advisor familiar with H2A visa holders and international tax issues to ensure compliance and understand any potential implications for his future green card application. Proper advice will guide him through the process and help avoid any legal or financial complications.

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