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New IR1 and business travel


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I hope I have posted this in the right subforum. My wife (Chinese citizen) has recently received her IR1 and will make her initial POE in a couple weeks. I am a US citizen and we have been married for over 6 years. She has been employed in China by a US company for the last several years to help develop their Chinese market. It seems the company would still like to keep her employed after her receiving US LPR status, but will want her to be in China for a considerable amount of time each year (each trip to China for approx 3 months or so, definitely less than 6 mo). One of our concerns is quite obvious - we don't want to risk her immigration status (perception of abandoning greencard). We have read a lot about this and are confused about the real rules used to determine this. Some simply say it is required to sleep in the US more nights than out of the country, others say be out of the US for less than six months, some say be out of the US for less than a year. It is also quite possible that I have misunderstood what I have read as well. We are definitely confused. Her job pays quite well and she would hate to have to give it up, but of course would if need be. This brings us to our next question. Her US employer pays her in China in USD's that are converted by a Chinese service company (as required by China for tax reporting purposes) to RMB and deposited in a Chinese bank. I am certain we need to consult a tax advisor on how to handle this for IRS filing purposes, but can this also affect her immigration status? Just for the record, we own homes free and clear both in the US and China and have joint bank accounts (checking, savings) here in the US (no joint accounts in China). Thank you so much for considering this long-winded post. I have made the same post on VJ, hope I'm not violating any forum rules.

 

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3 months out of a year should not cause issues maintaining green-card, the bulk of time (9 months) is actually residing in the USA.

 

As for employment tax issues, yes, consult a tax pro, probably be considered like a US based employee that visits China for short periods for the US Based company.

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Thanks so much for the quick reply. I wasn't clear in my OP in that she might take multiple 2-3 month trips to China each year and return to the US between each one. We're not sure how they count the time away as a problem - contiguous time away form the US or cummulative time. Anyone experienced these same concerns? And yes, we're exploring if the company change her employment to US-based.

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She will PROBABLY be eligible for the Form 2555 or 2555-EZ, if only for the first year. See your tax adviser for details. The amount eligible for "Exclusion" can be pro-rated for the time she was actually in China - just remember to use the Foreign Earned Income Worksheet in the 1040 instructions to calculate your taxes.

 

To use the Foreign Earned Income "Exclusion", she only needs to have lived in China for 330 days (I'm certain she's already there), even if it stretched across two years.

 

Otherwise, it's like any other job - you report the income in USD. She will probably not be able to get them to fill out a W-2, but you can use the Form 4852, Substitute for Form W-2, Wage and Tax Statement

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Thanks so much for the quick reply. I wasn't clear in my OP in that she might take multiple 2-3 month trips to China each year and return to the US between each one. We're not sure how they count the time away as a problem - contiguous time away form the US or cummulative time. Anyone experienced these same concerns? And yes, we're exploring if the company change her employment to US-based.

 

 

The question is - WHERE does she live? ANY time spent away from the U.S. can count against her. Make sure she has evidence handy that she can show the Immigrations Officials when she returns as to her U.S. domicile.

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She will PROBABLY be eligible for the Form 2555 or 2555-EZ, if only for the first year. See your tax adviser for details. The amount eligible for "Exclusion" can be pro-rated for the time she was actually in China - just remember to use the Foreign Earned Income Worksheet in the 1040 instructions to calculate your taxes.

 

To use the Foreign Earned Income "Exclusion", she only needs to have lived in China for 330 days (I'm certain she's already there), even if it stretched across two years.

 

Otherwise, it's like any other job - you report the income in USD. She will probably not be able to get them to fill out a W-2, but you can use the Form 4852, Substitute for Form W-2, Wage and Tax Statement

Thank you so much Randy. You've helped direct me where I should be looking.

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Thanks so much for the quick reply. I wasn't clear in my OP in that she might take multiple 2-3 month trips to China each year and return to the US between each one. We're not sure how they count the time away as a problem - contiguous time away form the US or cummulative time. Anyone experienced these same concerns? And yes, we're exploring if the company change her employment to US-based.

 

 

The question is - WHERE does she live? ANY time spent away from the U.S. can count against her. Make sure she has evidence handy that she can show the Immigrations Officials when she returns as to her U.S. domicile.

 

Would copy of deed to our US home, joint US bank account, SS card and maybe US ID (drivers license) be sufficient?

Edited by deg (see edit history)
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BTW, are there any concerns with working outside the US for her, time not withstanding? Someone I spoke with thought there might be a restriction on this for LPR's.

 

 

All world-wide income must be reported on your tax return.

 

Got it, but no restrictions on LPR's working outside the US? No effect on immigration status?

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BTW, are there any concerns with working outside the US for her, time not withstanding? Someone I spoke with thought there might be a restriction on this for LPR's.

 

 

All world-wide income must be reported on your tax return.

 

Got it, but no restrictions on LPR's working outside the US? No effect on immigration status?

 

 

I won't say no, here - that could be used as evidence of still living in China,

 

But it doesn't sound like you have a problem there.

 

Would copy of deed to our US home, joint US bank account, SS card and maybe US ID (drivers license be sufficient?

 

 

Yes - just give her a whole folder of stuff, including your marriage certificate, that she can whip out if she's pulled aside for further questioning.

 

The I-151 Advance Parole can also be used as evidence of retaining her U.S. domicile.

 

Just be prepared.

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Again, it has to do with how much time a person resides in the USA in a 1 year period, should be living in the states for more than 50% of the time, if less than 50% then the person is residing outside the USA.

 

Sounds like her job is with a US Based Employer, and some work responsibility is on location which is out of the USA, employment is US Based.

 

One member a few years ago reported his spouse resided and worked in China for a period of time to accumulate enough time for her chinese retirement, it did not cause them issues, in their case she went to China Nov 8 2009, and returned April 28, 2010 just short of 6 months.

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Again, it has to do with how much time a person resides in the USA in a 1 year period, should be living in the states for more than 50% of the time, if less than 50% then the person is residing outside the USA.

 

Sounds like her job is with a US Based Employer, and some work responsibility is on location which is out of the USA, employment is US Based.

 

One member a few years ago reported his spouse resided and worked in China for a period of time to accumulate enough time for her chinese retirement, it did not cause them issues, in their case she went to China Nov 8 2009, and returned April 28, 2010 just short of 6 months.

From responses so far, sounds like cumulative time and/or consecutive time of less than 6 months is the key.

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The I-151 Advance Parole can also be used as evidence of retaining her U.S. domicile.

 

Just be prepared.

 

That's her greencard right?

 

 

 

Sorry - I should have made sure of my terminology there. The Reentry Permit can be helpful if there are questions about her length of stay overseas, but probably not necessary in her case.

 

Advance Parole, Reentry Permit, and Refugee Travel Documentation for Returning Aliens Residing in the U.S

 

The problem is basically to convince the Immigrations Official when she returns that she LIVES in the U.S. There are no fixed guidelines for making this determination.

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