Richmond Hill, GA asked in Tax Law and Immigration Law for Georgia

Q: Should I use the 1040 or the 1040NR?

What is the appropriate tax form to use when filing taxes as an applicant with an ongoing green card application? Should I use the 1040 or the 1040NR?

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2 Lawyer Answers
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Immigration Law Lawyer
  • Sacramento, CA

A: You should use the 1040 form if you are considered a resident alien for tax purposes. This generally applies if you meet the Substantial Presence Test, which involves being physically present in the U.S. for at least 31 days during the current year and 183 days during the three-year period that includes the current year and the two years immediately before that. If you have applied for a green card and meet these criteria, you are likely to be considered a resident alien.

On the other hand, the 1040NR form is designed for non-resident aliens who need to report income earned in the U.S. If you do not meet the criteria for the Substantial Presence Test, you might need to use this form instead. It's important to assess your situation each year, as your tax obligations may change based on your residency status and the time you've spent in the U.S.

If you are uncertain about your status or which form to use, it would be wise to consult with a tax advisor or refer to the IRS guidelines. They can provide more personalized advice based on the specifics of your situation, such as your green card application status and your presence in the U.S. during the relevant tax year. This will help ensure you comply with U.S. tax laws while your green card application is pending.

Brian Chase Malone
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  • Immigration Law Lawyer
  • Atlanta, GA

A: Hello Sir,

I'm an immigration lawyer based in Atlanta. As my feedback follows briefly after the final hours of tax day here in the U.S., I want to commend you on being proactive and addressing your tax concern several weeks ago. I also want to provide you with some encoragement regarding an issue that I do not see directly addressed. My hope is that my response will provide you with a clear understanding of your concern within the context of immigration.

ISSUE: Whether it directly affects a pending green card case if one mistakenly files the wrong IRS form (i.e. 1040-NR instead of 1040, or 1040 instead of 1040-NR)?


In my capacity as a U.S. Immigration Attorney, I can answer this based on my professional experience. Your residency status for tax purpose is a different issue from your immigration status under U.S. immigration laws. I cannot speak on any particular IRS consequences of filing the incorrect form, but I can share with you that the IRS will not contact the U.S. Department of Homeland Security to discuss your choice of which form to file. In fact, the IRS is notorious for barely communicating with any other department or agency within the U.S. government, at all. The IRS doesn't care what your immigration status is. The IRS only cares whether you pay your taxes, or not.

With that said, I can tell you that what may actually be relevant to an immigration process in this country is any factual error that one provides in a tax filing, and whether it was an intentional decision.

For immigration purposes, the relevant issue is not necessarily which of these IRS forms should be filed. The relevant issue for a green card adjudicator is whether you provided truthful information in whatever form you submitted. Here is an example of what I mean --

If your pending green card is based on your marriage to a U.S. Citizen, marking your filing status as "single" rather than one of the choices that contemplates your marriage may raise concerns in your immigration application and lead to the adjudicator of your application looking into more inconsistencies. A pattern of inconsistencies and fraud are the primary concerns that could arise from tax filings. Someone's inadvertant error in choice of form-type is not a big deal.

And with that said, I want to wish you the best as you patiently wait for your green card to finish processing. If you were astute enough to observe your IRS form choice as an issue worth exploring in the context of your immigration status, I imagine that you have a very strong eye for detail that will serve you well when the officer assigned to your case makes his or her decision. Good luck and feel free to message me if you need clarification of anything I've explained. Have a great week, Sir.

Warmest Regards,

Brian C. Malone, Esq.

Malone Immigration Law, LLC

Office Phone: 404-369-1180



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Office Address: 3355 Lenox Rd Ste 750, Atlanta, GA 30326

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