Eleanor Finch
The term nonresident alien is used in the United States to refer to an individual who is not a U.S. citizen or national and has not passed the green card test or the substantial presence test. Nonresident aliens are subject to different tax regulations than resident aliens, including having a different method of tax withholding, completing different tax forms, and being eligible for limited deductions. The time period for which an individual is considered a nonresident alien depends on their visa status and the results of the substantial presence test, which evaluates the number of days they are physically present in the U.S. Nonresident aliens engaged in a trade or business in the U.S. must file a tax return and report their U.S. source income, while those not engaged in a trade or business are taxed at a flat rate with no deductions allowed.
| Characteristics | Values |
|---|---|
| Definition | An individual who is not a U.S. citizen or national and has not passed the green card test or the substantial presence test. |
| Taxation | Must pay U.S. tax on income from U.S. sources; taxed differently from resident aliens with limited deductions; must file a return if engaged in trade or business in the U.S. or have U.S. income with tax liability. |
| Time Period | Depends on the substantial presence test; generally, non-student visa holders are nonresident aliens for the first two calendar years, while student visa holders are considered non-resident for the first five years. |
| Visa Status | Includes F, J, M, or Q visa holders; J or Q visa holders who are not students (e.g., physicians, au pairs); H-1, TN, and O-1 visa holders until they meet the substantial presence test. |
| Dual-Status | Can be treated as a U.S. resident alien for part of the year if married to a U.S. citizen or resident alien; can be taxed as a dual-status alien by making the First-Year Election. |
| Income Tax Return | Must use Form 1040-NR, U.S. Nonresident Alien Income Tax Return; due date is generally April 15 or June 15 depending on employment status. |
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What You'll Learn
Nonresident aliens and tax
In the United States, an alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an individual who is not a U.S. citizen and has not passed the green card test or the substantial presence test. The substantial presence test requires an individual to be physically present in the U.S. for at least 183 days during the three-year period that includes the current calendar year and the two years immediately preceding. F and J student visa holders are considered non-resident aliens during their first five calendar years in the U.S. J researchers and professors are considered non-resident aliens during their first two calendar years in the U.S. H-1, TN, and O-1 visa holders are considered non-resident aliens until they meet the substantial presence test.
Nonresident aliens are subject to different tax rules than resident aliens. If a nonresident alien is engaged in a trade or business in the United States, they must pay U.S. tax on their effectively connected income, after allowable deductions, at the same rates that apply to U.S. citizens and residents. If a nonresident alien is not engaged in a trade or business in the U.S., their U.S. source income that is fixed, determinable, annual, or periodical is taxed at a flat 30% rate (or lower treaty rate) and no deductions are allowed against such income. Nonresident aliens who are required to file an income tax return must use Form 1040-NR, U.S. Nonresident Alien Income Tax Return. This form must be filed by the 15th day of the 4th month after the tax year ends, which is generally April 15 for those filing with a calendar year.
If a nonresident alien has a spouse who is a resident alien, the resident alien spouse can choose to treat the nonresident alien spouse as a U.S. resident alien for tax purposes and file Form 1040 using the filing status "Married Filing Jointly." Additionally, a nonresident alien must file a return if they have U.S. income on which the tax liability was not satisfied by the withholding of tax at the source, or if they want to claim a refund of excess withholding or claim the benefit of any deductions or credits.
Some nonresident aliens are exempt from U.S. tax, including foreign government-related individuals and nonresident aliens who elect the head of household filing status with a nonresident alien spouse.
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Aliens and deportation
In the United States, an alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an individual who is not a U.S. citizen and has not passed the green card test or the substantial presence test.
The U.S. has a long history of deporting nonresident aliens, with the wartime Alien Enemies Act of 1798 being used as a legal basis for deportation. This act grants the president the power to order the detention and deportation of "alien enemies" during times of declared war, invasion, or predatory incursion. Notably, this act was invoked during World War II to imprison and deport people of Japanese, German, and Italian ancestry.
In recent times, there have been controversial attempts to use the Alien Enemies Act to deport migrants, specifically targeting Venezuelans accused of being gang members. While some courts blocked these deportations, others ruled in favor of the act's use, provided that deportees were given the chance to challenge their removal.
The use of the Alien Enemies Act for deportations has been criticized as a deviation from its intended purpose as a wartime authority. Anti-immigration groups advocate for a broader interpretation of "invasion" to include unlawful migration, but this proposed reading has been largely at odds with legislative, presidential, and judicial practices.
In addition to the Alien Enemies Act, the U.S. has other laws and policies in place to address the presence of nonresident aliens within its borders. For example, the Secretary of Homeland Security is tasked with ensuring the enforcement of provisions related to the illegal entry and unlawful presence of aliens, as well as encouraging aliens unlawfully present in the country to voluntarily depart.
The U.S. also has specific tax regulations for nonresident aliens, which differ from those for resident aliens or U.S. citizens. Nonresident aliens engaged in trade or business in the U.S. must pay taxes on their effectively connected income, while those who are not engaged in trade or business are taxed at a flat rate on fixed, determinable, annual, or periodical U.S.-source income, without deductions.
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Aliens and the First Amendment
The First Amendment rights of non-citizens or aliens have been the subject of debate and legal precedent in the United States. The term "alien" refers to any individual who is not a U.S. citizen or national. The United States' immigration laws differentiate between immigrants, non-immigrants, and undocumented aliens, while tax laws refer only to Nonresident Alien (NRA) and Resident Alien (RA).
The Supreme Court has held that aliens seeking to enter the United States are entitled to lesser First Amendment protections. In United States ex rel. Knauff v. Shaughnessy (1950), the Court upheld the right of Congress to expel aliens, but Justice David Brewer argued that legal resident aliens should be protected by the Constitution, particularly in terms of legal due process. During the McCarthy Era, the Supreme Court allowed the deportation of a legal resident alien who was a member of the Communist Party in Harisiades v. Shaughnessy (1952). However, in Bridges v. Wixon (1945), Justice Francis W. Murphy stated that "once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders."
The Alien and Sedition Acts of 1798, a set of four statutes, aimed to restrict immigration and limit First Amendment protections for freedom of speech. The Acts were proposed by the Adams administration as a response to the French Revolution and the fear of domestic political subversion. The Sedition Act, in particular, led to the prosecution of journalists and sparked protests across the country, with critics denouncing the Acts as a violation of the First Amendment.
In more recent times, the USA Patriot Act of 2001 targeted certain speech and association activities by non-citizens, allowing the deportation of aliens associated with groups deemed terrorist organizations. The extent of due process protection for aliens has been suggested by the Supreme Court to vary depending on their status and circumstances. In Kwong Hai Chew (1953), the Court held that a lawful permanent resident cannot be deported without due process, including notice of the charge and a hearing. In Mathews v. Diaz (1976), the Court extended constitutional protections to all aliens within the United States, regardless of their legal status, under the Fifth and Fourteenth Amendments.
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Aliens and due process
In the United States, an alien is any individual who is not a US citizen or national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test. The latter is determined by the number of days spent in the US over a three-year period, including the current year and the two preceding years.
The US Constitution guarantees due process to all persons within its borders, regardless of their citizenship or legal status. The Fifth and Fourteenth Amendments protect every individual from deprivation of life, liberty, or property without due process of law. This includes aliens who are physically present in the US, even if they are in the country unlawfully or temporarily.
The Supreme Court has affirmed that aliens within the US jurisdiction are protected by due process, and Congress must provide a "clear indication" of its intent to authorise the indefinite detention of removable aliens. The Court has also outlined specific due process requirements for removal proceedings, including proper notice, a neutral fact-finder, and a reasonable opportunity to present evidence.
The extent of due process protections for aliens may vary depending on factors such as their legal admission, ties to the US, and engagement in criminal activity. For example, the Supreme Court has held that the government has the authority to detain aliens indefinitely during removal proceedings, but the constitutionality of such indefinite detention remains unresolved.
In summary, while aliens in the United States are guaranteed due process, the specific protections afforded to them may differ based on their circumstances, and the government retains the power to regulate immigration and enforce removal orders.
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Aliens and the right to legal counsel
In the United States, an alien is any individual who is not a U.S. citizen or U.S. national. A nonresident alien is an alien who has not passed the green card test or the substantial presence test. Nonresident aliens are subject to specific tax regulations, including paying taxes on income earned in the U.S. and filing tax returns under certain conditions.
Regarding the right to legal counsel, the U.S. Constitution guarantees certain rights to aliens facing deportation proceedings, including the right to counsel. This right ensures that aliens have access to legal representation during the legal process of deportation. The Supreme Court has upheld the constitutionality of deportation proceedings, which afford aliens these legal rights.
In addition to the right to counsel, deportation proceedings also grant aliens other constitutional protections, such as the right against self-incrimination, protection against unreasonable searches and seizures, and the right to procedural due process. These rights are in place to ensure that aliens facing potential deportation are treated fairly and are given the opportunity to present their case.
The Court has also recognized that due process considerations may constrain the federal government's exercise of its immigration powers. In the Japanese Immigrant Case of 1903, the Court clarified that an alien who has entered the country and become subject to its jurisdiction cannot be deported without an opportunity to be heard. This precedent set by the Court extends constitutional protections to all aliens within the United States, regardless of their legal status.
In conclusion, while the specifics of immigration laws and policies can be complex and subject to change, the right to legal counsel for aliens facing deportation proceedings is a guaranteed constitutional right in the United States. This right is supported by additional protections, such as due process considerations, to ensure that aliens are afforded a fair and just legal process.
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Frequently asked questions
An alien is any individual who is not a US citizen or US national.
A nonresident alien is an alien who has not passed the green card test or the substantial presence test.
Nonresident aliens have the right to due process and equal protection under the law, as well as freedom of speech and of the press. They must also pay US taxes on any income earned within the country.
A resident alien is a US citizen or a foreign national who has met the "green card" or "substantial presence" test. A non-resident alien is a person who is not a US citizen and has not met either of these tests.
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