xxxx xxxxxx wrote:
Your knowledge is truly remarkable. I am hoping you can advise me during this most busy time of yours.
I am a xxxxxxxxxxxx born immigrant who has lived in the U.S. since 1986 (when I was seven).
Until 1990, my mother and I were dependents on my father's F-1 student visas.
Then we became dependents on his H-1 visa
In 1997, I split off to my own F-1 Visa to attend college (and work on campus)
In 2000, my parents finally became U.S. Permanent Residents; however, since I was over the age, I did not benefit and was left stranded on my F-1.
Since 2001, after my graduation, I have been working in Detroit on my own H1.
After much painstaking effort to get cooperation from my employer, I got my labor certification approved on 30 DEC 05 and I became eligible to file for Adjustment of Status in June of 2007 and did so (receipted 06 SEP 07).
Then came a backlog (expected) and another (less expected).
Becoming somewhat disillusioned with the US process and having befriended many in Detroit's cross-border city of Windsor (Ontario, Canada), I put in an application to become a Permanent Resident of Canada as well. At the same time, I fell in love with a xxxxxxxx student studying xxxxxxxxxx xxxxxxxx.
We got married on January 19th, 2009 after living together for some time at the University of Michigan housing. Shortly thereafter, I was already granted the Permanent Residence in Canada and landed at the address of one my very close Canadian friends. For 2009, I have been back and forth between my friend's Canadian address and my wife's dorm for married students.
Now, on to the tax stuff: I am truly in no-man's-land.
There is no way I am willing give-up my primary tax liability to the U.S. I have been paying into US Social Security and Medicare for nine years and have every intention of continuing to do so in pursuit of U.S. Permanent Residence.
Having the Canadian PR, I could have theoretically walked away from the U.S. PR if it were just me, but now I have my wife to consider.
She is a xxxxxxxx citizen at U Mich on an F-1 and she never applied to be a Canadian PR. I need to continue to carry my health insurance in the US to cover her and, when my "Priority Date" becomes current, we need to file her Adjustment of Status for the U.S. PR as well.
I am interested in pursuing Canadian Citizenship, though, or at least retain the PR "in case the U.S. PR NEVER works out." Also, I really like it in both Detroit and Windsor. And it reminds my wife of Europe to be able to cross borders on a nearly daily basis.
Would there be any violation in simply (albeit at great cost) filing in Canada as well assuming primary liability in here as well?
If it is allowed, do I simply report the U.S. income and not ask for any tax credit (neither here nor in the U.S.)?
Do I send a copy of U.S. return?
If so, is it a problem that the income will show as W-2 instead of 1099?
david ingram replies:
I want to make it clear that I am NOT an immigration lawyer. In my opinion you need some very good legal advice on the US side from someone who has the experience to deal with your two different countries background at the same time and who has privileged communication fro whatever you tell him.
If you have an application in for a green card, you are NOT allowed to leave the US and re-enter without an advance parole. As I understand it, you could be turned back the next time you try and re-enter the US from Canada if the border control officer learns or knows that you have a green card application alive.
If your wife is in the states and your job is in the states and you want to stay in the states with her, then forget about Canada until AFTER your US (Green) Permanent Resident card is alive. After the US PR card is issued, you can decide whether you want to try and do something about Canada.
To keep a PR card in Canada alive, you have to show physical presence in Canada for 24 out of any 60 month period.
To keep your US PR card alive you have to be in the US for more than 6 months a year.
This means that you can keep both alive if you get your green card in the next year and a half. and then spend 7 months in Detroit and 5 months in Windsor. That also means that you do not qualify for Canadian or Ontario Provincial medical.
Filing a Canadian tax return does NOT keep your Canadian PR card alive. Physical presence does and it is very possible for you to sleep in Ontario 155 nights a year while working in the US and sleeping in the USA the other 210 nights and not own Canada any tax (article 4(2)(a) of the US Canada Income Tax Convention) if your only income is earned in the USA.
Joe Grasmick is imminently qualified to deal with you as a US immigration attorney and you can prepay a consultation with PAYPAL. see his site at www.grasmick.com
Hope this helps
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