Foreign Nationals in the USA and filing requirements

By Expat News

If you are a foreign national doing business or working in the United States, you are required to file a tax return if your U.S. source income is greater than your personal exemption ($3,700 in 2011). To “file a return” means to send it to the IRS, either through the mail or electronically. You are considered to be engaged in a business even if you are an employee working for wages.


If you are a student or scholar visiting the United States on an F, J, M or Q visa, and are classified as a nonresident for U.S. tax purposes, you are required to file a Federal income tax return each year if you have any income subject to U.S. income tax.

Additionally, if you are an exempt individual, you are required to file Form 8843 regardless of your income. Here is a description of the forms you are required to file:

  • Form 1040NR, U.S. Nonresident Alien Income Tax Return, or if you qualify, Form 1040NR-EZ, U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents, and
  • For exempt individuals, Form 8843, Statement for Exempt Individuals and Individuals with a Medical Condition.

In prior years, nonresident alien students and scholars were required to file an income tax return regardless of their income. The IRS changed this policy in 1997 to require a return only if you have income subject to U.S. tax. However, a formal interpretation has not been issued by the IRS specifying exactly what they mean by this. One IRS official has stated that if you have received only a “qualified scholarship” that is excluded by U.S. statue, you do not have to file a return. Another IRS official stated that you must file a return if you have income exempt by treaty in order to claim the treaty exemption. It doesn’t matter that your employer withheld adequate tax from your paychecks, or that you have a small amount of income and owe no tax; you are still supposed to file.

Form 8843 is required if you are an “exempt individual.” This does not mean you are exempt from paying U.S. taxes, but that you are exempt from the substantial presence test for determining residency status. You must file Form 8843 even if you are not required to file an income tax return.