International Students: Permanent Dreams, Temporary Realities?

International students are foreign nationals who reside in a host country for a specific purpose and period. Their legal status depends on the type of visa they hold, with categories like F-1, H-1B, O1, E1, J1, and more. These visas often classify international students as temporary residents, allowing them to stay in the host country without full citizenship. The criteria for temporary residency vary across countries, and in some cases, international students may be considered resident aliens for tax purposes after residing in the host country for a certain period.

International students with F-1 visas are considered temporary US residents

To be eligible for an F-1 visa, students must meet several criteria. Firstly, they must be enrolled in an academic educational programme, a language-training programme, or a vocational programme. Secondly, their school must be approved by the Student and Exchange Visitors Program (SEVP), Immigration and Customs Enforcement (ICE). Thirdly, students must be enrolled full-time and be proficient in English or be enrolled in courses leading to English proficiency.

Additionally, F-1 visa holders must have sufficient funds available for self-support during their entire course of study and maintain a residence abroad that they have no intention of giving up. F-1 students may not work off-campus during their first academic year but may accept on-campus employment subject to certain conditions and restrictions. After the first academic year, they may engage in specific types of off-campus employment, such as the Science, Technology, Engineering, and Mathematics (STEM) Optional Practical Training Extension (OPT).

Foreign nationals with visas that require a prolonged stay are temporary residents

Foreign nationals with visas requiring a prolonged stay in a country are typically considered temporary residents. In the US, for instance, foreign nationals with visas such as B1, H-1B, O1, E1, F1, and J1 are considered temporary residents. These visas are typically issued to those seeking to enter the country on a temporary basis for tourism, medical treatment, business, temporary work, or study.

Temporary residents in the US are subject to certain rules and restrictions. For instance, they must adhere to the expiration dates, rules, and conditions outlined in their visas. Additionally, they may encounter challenges when applying for visas to other countries, as they may need to submit vital records such as birth, marriage, or death certificates.

Another crucial consideration for temporary residents in the US is their eligibility for a green card, which confers permanent resident status. Temporary residents seeking a green card must be cautious about spending extended periods abroad, as remaining outside the US for more than six months may jeopardize their chances of obtaining a green card. This time limit is an important factor for temporary residents to bear in mind when planning their travels or applying for long-term programs.

The distinction between temporary and permanent residents is also relevant for tax purposes. In the US, a resident alien for tax purposes is defined as a US citizen or a foreign national who meets either the "green card" or "substantial presence" test. F and J student visa holders, for instance, are considered resident aliens after five calendar years in the US, while H-1, TN, and O-1 visa holders are classified as resident aliens once they meet the "substantial presence" test.

In summary, foreign nationals with visas requiring a prolonged stay are typically designated as temporary residents, and their rights, obligations, and opportunities are shaped by this status. Temporary residents must carefully navigate visa rules, consider the implications for future green card applications, and be mindful of their classification for tax purposes.

Temporary residents can apply for permanent residency or 'green card' status

International students are considered temporary residents in the US if they hold certain visa categories, such as B1, H-1B, O1, E1, F1, or J1. Temporary residents seeking permanent resident status, or a green card, must adhere to specific rules and time limits for living abroad to maintain their eligibility.

Temporary residents can apply for permanent residency or green card status, but there are several factors and requirements to consider. Here are the key points to understand:

Time Limits for Living Abroad:

Temporary residents seeking a green card must be cautious about the amount of time they spend outside the US. If a temporary resident spends more than six months abroad, they may be disqualified from receiving a green card. This is an important consideration for those seeking permanent residency, as prolonged stays abroad can impact their eligibility.

Visa Expiration and Conditions:

Temporary residents need to be diligent about monitoring the expiration dates, rules, and conditions of their visas. It's crucial to stay within the validity period and comply with any specific requirements associated with their visa status. Failure to do so could affect their ability to maintain temporary resident status and ultimately impact their path to permanent residency.

"Substantial Presence" Test:

For tax purposes, a foreign national in non-immigrant visa status may be considered a resident alien if they meet the "substantial presence" test. This test typically requires an individual to be physically present in the US for at least 183 days over a three-year period, including the current year and the two preceding years. F-1 and J-1 visa holders, who are students or scholars, are exempt from counting days towards this test during their first five calendar years in the US.

Lawful Permanent Resident (LPR) Status:

Lawful Permanent Residents (LPRs), also known as "green card" holders, are authorized to live and work in the US permanently. LPRs enjoy various benefits, including the freedom to accept employment without restrictions, own property, and apply for US citizenship if they meet certain eligibility requirements. However, maintaining LPR status requires attention to travel, as remaining outside the US for more than a year may result in the loss of this status.

Temporary Protected Status (TPS):

Temporary Protected Status (TPS) is granted to certain eligible nationals of designated countries experiencing challenging conditions. While TPS does not directly provide a path to lawful permanent residence, a TPS recipient who is otherwise eligible for permanent residence may apply for that status. However, there are specific requirements and restrictions associated with TPS, and the process of adjusting status can be complex.

In summary, temporary residents can pursue a path towards permanent residency or green card status, but it requires careful navigation of visa rules, maintaining presence in the US, and understanding the specific requirements and benefits associated with LPR status and TPS, if applicable. It is always advisable to seek official guidance from relevant government sources to ensure accurate and up-to-date information regarding immigration procedures.

Non-US citizens must follow visa rules applicable to their citizenship

International students on F-1 visas are considered temporary US residents. However, the definition of "US resident" can vary depending on the context. For instance, F-1 visa holders are considered domiciled in the US but may or may not be subject to the US tax code as residents.

More broadly, foreign nationals with visas that require a prolonged stay (such as B1, H-1B, O1, E1, F1, or J1 visas) are considered temporary residents. Their dependents—spouses and children—are also considered temporary residents.

On the other hand, permanent residents in the US are known as "green card holders." They are authorized to live and work in the US permanently and can exit and re-enter the country under a standardized set of rules.

Non-US citizens must follow the visa rules applicable to their citizenship. Here are some key points to consider:

• Visa Requirements: Non-US citizens typically need a visa to enter the US, and the specific visa requirements depend on their country of citizenship. Different types of visas have different rules and restrictions, so it is important to understand the conditions of your particular visa.
• Time Limits: Temporary residents seeking green card status should be mindful of time limits for living abroad. Spending more than six months outside the US may disqualify them from receiving a green card.
• Visa Expiration and Conditions: It is essential to keep track of visa expiration dates and understand the rules and conditions associated with your visa. Non-compliance can lead to negative consequences for your visa status.
• Travel to Other Countries: When travelling to other countries, non-US citizens may need to obtain vital records (birth, marriage, or death certificates) to be submitted to consulates. Temporary residents may encounter difficulties in obtaining these records from their country of origin.
• Visa Waiver Program: The Visa Waiver Program (VWP) allows citizens of specific countries to visit the US for business or tourism for up to 90 days without a visa. However, this program is not applicable to all nationalities.
• Schengen Agreement: The Schengen Agreement standardizes visa, passport, and border controls across member states. If travelling to a Schengen country, non-US citizens should be aware of the specific visa requirements and the freedom of movement within other member states.

F and J student visa holders are considered non-resident aliens for their first five years

International students in the US on F-1, J-1, or M-1 visas are considered non-resident aliens for their first five years in the country. This means they are exempt from Social Security Tax and Medicare Tax on wages they earn from services performed within the United States. However, they are not permitted to earn self-employment income in the US. If they do, this income will be subject to US income tax.

F-1 visa holders are generally considered nonresident aliens for tax purposes. They will be taxed on their capital gains during any tax year in which they are present in the US for 183 days or more, unless a tax treaty provides for a lesser rate of taxation. If an F-1 visa holder intends to stay in the US for longer than a year, they are subject to a 30% taxation on their capital gains. If an F-1 visa holder is married to a US citizen or resident, they can file joint returns. If both spouses are nonresidents, they should file as 'Married Filing Separate'.

There are three types of residency for tax purposes in the US: residents, non-residents, and dual-status aliens. A resident alien for tax purposes is a US citizen or a foreign national who meets either the "green card" or "substantial presence" test. A non-resident alien is a person who is not a US citizen and does not meet either of these tests. The "substantial presence" test requires that the person is physically present in the US on at least 183 days over a three-year period, including the current year and the two preceding years. F and J student visa holders are exempt from counting days for their first five years in the US.

Frequently asked questions