J-2 Resident Alien for tax purposes?

[inezt]

Hello,

I have been on a J-2 visa (from my husband's J-1 research visa) since the beginning of the year and I have SSN and Employment Authorisation. I am doing some freelance work and I was just asked to fill in the w-9 form, in which I have to certify that I am a US Person, which includes being a resident alien. My husband is still exempt from taxes because of the two year clause (so he is still a non-resident alien). Am I a resident alien for tax purposes?
Thank you!

[inadmissible]

1) your spouse is not exempt from US income taxes, as non-resident aliens (for tax purposes) they are only exempt from social security and medicare taxes

2) You would be treated as a non-resident alien as well, if not for the fact that you are violating your visa status by engaging in employment. Therefore, you should treat yourself as a US resident for tax purposes

[inezt]

1) your spouse is not exempt from US income taxes, as non-resident aliens (for tax purposes) they are only exempt from social security and medicare taxes

Right!

2) You would be treated as a non-resident alien as well, if not for the fact that you are violating your visa status by engaging in employment. Therefore, you should treat yourself as a US resident for tax purposes

Thank you!
Am I automatically a resident alien because I work and have EAD/SSN, or am I subject to the Substantial Presence Test? Say, if I was in the US less than 183 days.

[newacct]

Hello,

I have been on a J-2 visa (from my husband's J-1 research visa) since the beginning of the year and I have SSN and Employment Authorisation. I am doing some freelance work and I was just asked to fill in the w-9 form, in which I have to certify that I am a US Person, which includes being a resident alien. My husband is still exempt from taxes because of the two year clause (so he is still a non-resident alien). Am I a resident alien for tax purposes?
Thank you!

Normally someone in the US is a resident alien if they meet the Substantial Presence Test, which means (the number of days they are present in the US that year) + 1/3 (the number of days they are present in the US the previous year) + 1/6 (the number of days they are present in the US the year before that) >= 183 days. However, in some cases days do not count for the Substantial Presence Test.

J-1 can be "student" or "teacher or trainee" (anything other than student). All the days as a "student" are exempt from the Substantial Presence Test for a given year if they have not been exempt from the Substantial Presence Test for any part of 5 previous calendar years. All the days as a "teacher or trainee" are exempt from the Substantial Presence Test for a given year if they have not been exempt from the Substantial Presence Test for any part of 2 of the previous 6 calendar years. The same rules apply to spouses and children.

I'll assume that your husband is not a J-1 "student"? And therefore he would fall under "teacher or trainee". So basically, long story short, if you haven't been in the US before you came on J-2, then you are a non-resident alien for this year, 2017, if you came in 2016 or later; you are a resident alien for 2017 if you came in 2015 or earlier.

if not for the fact that you are violating your visa status by engaging in employment.

J-2s are entitled to get EADs, and if they are working on a J-2 EAD then it's not violating their J-2 status.

[inezt]

J-1 can be "student" or "teacher or trainee" (anything other than student). All the days as a "student" are exempt from the Substantial Presence Test for a given year if they have not been exempt from the Substantial Presence Test for any part of 5 previous calendar years. All the days as a "teacher or trainee" are exempt from the Substantial Presence Test for a given year if they have not been exempt from the Substantial Presence Test for any part of 2 of the previous 6 calendar years. The same rules apply to spouses and children.

I'll assume that your husband is not a J-1 "student"? And therefore he would fall under "teacher or trainee". So basically, long story short, if you haven't been in the US before you came on J-2, then you are a non-resident alien for this year, 2017, if you came in 2016 or later; you are a resident alien for 2017 if you came in 2015 or earlier.

Yes, he is in the second category. So that clarifies that I am a non-resident alien. But for tax purposes am I considered a "U.S. Person"? i.e., can I fill in the W-9 form?

J-2s are entitled to get EADs, and if they are working on a J-2 EAD then it's not violating their J-2 status.

Yes, I am working on a J-2 EAD, I just wonder if the fact that I have an EAD and work changes my status in the IRS definition.

Thank you for your help, these different definitions of resident/non-resident are a bit confusing to me

[newacct]

Yes, he is in the second category. So that clarifies that I am a non-resident alien. But for tax purposes am I considered a "U.S. Person"? i.e., can I fill in the W-9 form?

Since you are not a US citizen or resident alien, you are not a US person right now. So I think you would fill in W-8BEN, not W-9.