gc_maine2
04-04 10:27 AM
:confused::confused:
I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.
(a) S corporation defined.
(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.
(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.
(b) Small business corporation.
(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�
(A) have more than 100 shareholders,
(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,
(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.
(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�
(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,
(B) an insurance company subject to tax under subchapter L,
(C) a corporation to which an election under section 936 applies, or
(D) a DISC or former DISC.
There is no mention here that the "resident" must be a permanent resident.
Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:
Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357
(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:
Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted.
(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.
In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.
Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!
Very good info, thanks for the posting. BUt its still not clear whether the spouse who is on EAD and does not work at all or for that matter 6 months in a given year, will she/he be eligible for setting up a S -corp??
Thanks
sree
I am excerpting Internal Revenue Code Section 1361 below:
Internal Revenue Code
� 1361 S corporation defined.
(a) S corporation defined.
(1) In general.
For purposes of this title, the term �S corporation� means, with respect to any taxable year, a small business corporation for which an election under section 1362(a) is in effect for such year.
(2) C corporation.
For purposes of this title, the term �C corporation� means, with respect to any taxable year, a corporation which is not an S corporation for such year.
(b) Small business corporation.
(1) In general.
For purposes of this subchapter, the term �small business corporation� means a domestic corporation which is not an ineligible corporation and which does not�
(A) have more than 100 shareholders,
(B) have as a shareholder a person (other than an estate, a trust described in subsection (c)(2) , or an organization described in subsection (c)(6) ) who is not an individual,
(C) have a nonresident alien as a shareholder, and
(D) have more than 1 class of stock.
(2) Ineligible corporation defined.
For purposes of paragraph (1) , the term �ineligible corporation� means any corporation which is�
(A) a financial institution which uses the reserve method of accounting for bad debts described in section 585 ,
(B) an insurance company subject to tax under subchapter L,
(C) a corporation to which an election under section 936 applies, or
(D) a DISC or former DISC.
There is no mention here that the "resident" must be a permanent resident.
Here is an excerpt of the Federal Regulation that defines who is a "resident alien" for taxation purposes:
Reg �1.871-2. Determining residence of alien individuals.
Caution: The Treasury has not yet amended Reg � 1.871-2 to reflect changes made by P.L. 108-357
(a) General. The term �nonresident alien individual� means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term �fiduciary� shall have the meaning assigned to it by section 7701(a)(6) and the regulations in Part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of �1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien make his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
Here is the relevant Federal Regulation on Proof of Residence for determining status for tax purposes:
Reg �1.871-4. Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien, by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted.
(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof�
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraphs (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
(c) Application and effective dates. Unless the context indicates otherwise, ��1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and ��301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of ��1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see �20.0-1(b)(1) and (2) and � 25.2501-1(b) of this chapter, respectively.
In summary, I submit to you that if you work in the US for more than 6 months out of a given year, you are a resident alien, and therefore are eligible to set up an S-Corp.
Since I am still learning about this, any input/feedback/logical arguments with relevant proof/citations would be appreciated!
Very good info, thanks for the posting. BUt its still not clear whether the spouse who is on EAD and does not work at all or for that matter 6 months in a given year, will she/he be eligible for setting up a S -corp??
Thanks
sree
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gc_on_demand
04-30 03:03 PM
Aytes is talking about transformation program...
Any idea on transformation program ??:confused::confused:
Any idea on transformation program ??:confused::confused:
Libra
09-12 11:43 AM
12k+ more to reach goal. please contribute.
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Blessing&Lifeisbeautiful
07-24 04:11 PM
Calling all Schedule A professionals? Anyone concurrently filing this July?
more...
yabadaba
02-18 05:07 PM
i had run these numbers a while back. for sure EB2 will reach the end of 2005 this year. i just hope its done systematically so that they clear everybody with an EB2 2005 PD this year.
jonty_11
07-06 05:44 PM
7/06/2007: Temporary Restraining Order of July Visa Bulletin Lawsuit Filed in the U.S. District Court for the Northern District of Illinois as Separate from AILF Class Action
* On July 6, 2007, the attorneys of Azulay, Horn & Seiden lawfirm filed this lawsuit individually in Illinois.
Ok here I go again in this Chicken and Egg situation......
Now that someone filed a lawsuit to invalidate the July VB, which BTW is still CURRENT.......it could invalidate the CURRENT sttatus....of all Eb categories....precisely what DOS USCIS wants....
My head is spinning.......Beer anyone?
* On July 6, 2007, the attorneys of Azulay, Horn & Seiden lawfirm filed this lawsuit individually in Illinois.
Ok here I go again in this Chicken and Egg situation......
Now that someone filed a lawsuit to invalidate the July VB, which BTW is still CURRENT.......it could invalidate the CURRENT sttatus....of all Eb categories....precisely what DOS USCIS wants....
My head is spinning.......Beer anyone?
more...
mallu
03-31 11:42 PM
Alright Guys, Let's ignore this Dard-e-disco guy he doesn't deserve a second of our time. To answer your question, one thing atleast USCIS can give us is, Release data like How many applications they have already received from Major Green Card Seeking countries and in which EB categories. All this data they would have entered in their computers, They can easily run these kind of reports, I'm sure they'll be having some Data Warehousing softwares. So atleast everybody of know where we stand today and stop predicting cut-off dates etc. etc.
They can also make sure they send our APs and EADs in less than 90 days....
As Ron Gotcher observed, they are still using DOS ( not department of state ! ) programs .
They can also make sure they send our APs and EADs in less than 90 days....
As Ron Gotcher observed, they are still using DOS ( not department of state ! ) programs .
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Dhundhun
06-23 05:18 PM
People,
I am preparing an article for NY times explaining our sufferings! Please contribute your thoughts.
1. What is America losing because of our prolonged wait for Green Cards?
2. How people who have green cards are contributing to the country as a whole ?
3. What if the whole green card process takes less than 3 years ?
Few obvious things are we would have bought a house, gone up in our carrier ladder, spend more and contribute to the economy, our spouse could have started working etc....
I am looking for thoughts and experience other than the above things.
USA is made by illegal immigrants (over 13 millions) and bonded labors (H1B - GC).
Losses suffered by illegal immigrants and H1B-GC people fuels US economy (or at least contributes to that). My contributions so far might have been above half a millions. Indirect beneficiaris are top most companies.
You may get some valuable inputs from http://immigrationvoice.org/forum/showthread.php?t=19766 although I did not fully endorse the thread:
Good observation.
It will be breaking more than making - it will be like this news: http://timesofindia.indiatimes.com/Is_Hindu_marriage_law_breaking_homes/articleshow/3154827.cms
America is not loosing by delaying any process of streamlining any illegal immigrants or H1B-GC process.
I am preparing an article for NY times explaining our sufferings! Please contribute your thoughts.
1. What is America losing because of our prolonged wait for Green Cards?
2. How people who have green cards are contributing to the country as a whole ?
3. What if the whole green card process takes less than 3 years ?
Few obvious things are we would have bought a house, gone up in our carrier ladder, spend more and contribute to the economy, our spouse could have started working etc....
I am looking for thoughts and experience other than the above things.
USA is made by illegal immigrants (over 13 millions) and bonded labors (H1B - GC).
Losses suffered by illegal immigrants and H1B-GC people fuels US economy (or at least contributes to that). My contributions so far might have been above half a millions. Indirect beneficiaris are top most companies.
You may get some valuable inputs from http://immigrationvoice.org/forum/showthread.php?t=19766 although I did not fully endorse the thread:
Good observation.
It will be breaking more than making - it will be like this news: http://timesofindia.indiatimes.com/Is_Hindu_marriage_law_breaking_homes/articleshow/3154827.cms
America is not loosing by delaying any process of streamlining any illegal immigrants or H1B-GC process.
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HawaldarNaik
03-04 01:15 PM
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chanduv23
09-16 07:04 PM
Hi,
1st time contributor to IV. Here's the Paypal Confirmation #: 6R998807RX0308502.
Plan to join the rally with my toddler. Best wishes to IV and good work Milind123.
Thanks for the contribution and for attending - your toddler is a hero
1st time contributor to IV. Here's the Paypal Confirmation #: 6R998807RX0308502.
Plan to join the rally with my toddler. Best wishes to IV and good work Milind123.
Thanks for the contribution and for attending - your toddler is a hero
more...
sracharla
09-04 10:59 AM
Hi,
I live in colorado...my H1B is going to expire Oct 27...I have not applied for H1B Extn. yet...But i have EAD...According to colorado DMV i should be able to use EAD for driving license extn...but does using EAD invalidates my H1B??...i am planning to apply for my H1B extn this week...but i won't be able to get approval in 3 weeks (assuming i do premium processing)...Please help me.
I live in colorado...my H1B is going to expire Oct 27...I have not applied for H1B Extn. yet...But i have EAD...According to colorado DMV i should be able to use EAD for driving license extn...but does using EAD invalidates my H1B??...i am planning to apply for my H1B extn this week...but i won't be able to get approval in 3 weeks (assuming i do premium processing)...Please help me.
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Refugee_New
08-26 02:51 PM
Can you substantiate how he is suffering ? I also have a home loan through ICICI Bank and have been very happy so far. They have the best service amongst all banks in the country, and so they charge for it. Ultimately its a trade-off - you can decide whether you want to go cheap or require good service.
As some posters pointed out earlier, its extremely easy to apply for a home loan through ICICI Bank sitting here in the US. I dont know of any other Indian banks that would provide you the same level of convenience.
Check their interest rate and their service fee. I don't have to say anything anymore.
By the way what kind of convenience you received from ICICI bank? Recently i asked for a password change. You know the procedure for changing the password? I don't want to waste a page here. You yourself go and verify.
Apart from that you have to pay close to 400 rupees for every password change. Tell me if i am wrong. I challenge you.
As some posters pointed out earlier, its extremely easy to apply for a home loan through ICICI Bank sitting here in the US. I dont know of any other Indian banks that would provide you the same level of convenience.
Check their interest rate and their service fee. I don't have to say anything anymore.
By the way what kind of convenience you received from ICICI bank? Recently i asked for a password change. You know the procedure for changing the password? I don't want to waste a page here. You yourself go and verify.
Apart from that you have to pay close to 400 rupees for every password change. Tell me if i am wrong. I challenge you.
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sparky_jones
03-04 11:27 AM
Is your case at NSC? I have definitely noticed a pattern of pre-adjudcation activity from NSC for cases filed in July-August 2007.
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India_USA
12-16 09:07 AM
Glad to know things are improving on this front :)
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newuser
07-18 12:43 PM
Not to forget the people stuck in backlog centers.
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nyte_crawler
04-25 11:41 AM
What i meant was, although H1 it is a dual intent visa, you dont necessarily show your intention until you apply for your green card process. There are cities that follow different tax structures when you apply for labor or not. Technically, that when you are showing your intention of immigrating. So why throw a blanket on entry date on H1, when some of them dont have the intention of immigrating to US permanently. This will only increase the demand of the GCs.
H1B believe it or not is a "dual intent visa". F1 is NOT a dual intent visa. So what that means is even tho a person entered USA on H1B(which is Nonimmigrant visa) he can have a dual intent to "adjust status" and become a permanent resident.
So I would think it would very wise to be given a PD based on when a person started working on "H"
H1B believe it or not is a "dual intent visa". F1 is NOT a dual intent visa. So what that means is even tho a person entered USA on H1B(which is Nonimmigrant visa) he can have a dual intent to "adjust status" and become a permanent resident.
So I would think it would very wise to be given a PD based on when a person started working on "H"
more...
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alterego
07-06 01:53 PM
There are about 18K CP cases.
Yeah but if the PDs are set as unavailable, what can they do about those cases anyway, as the priority date has to be current on the day of approval in the consulate.
Furthermore, unlike with 485s they can't consular process 18K cases on a Sunday! It is not a centralised process for them to do that.
Yeah but if the PDs are set as unavailable, what can they do about those cases anyway, as the priority date has to be current on the day of approval in the consulate.
Furthermore, unlike with 485s they can't consular process 18K cases on a Sunday! It is not a centralised process for them to do that.
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Lacris
08-17 09:07 PM
Hi,
Did anyone get a SSN with their passport expired?
My passport expired in April and the Romanian embassy doesn't renew passports for people who are not US permanent residents or citizens. What I could do was to make a letter of representation for someone in my country, get it certified at one of the Romanian consulates and send all the ORIGINAL documents thru mail in Romania. Since I'm a full time graduate student, even finding time to go to the nearest consulate was almost impossible. I was also worried that we might be asked to show up for an interview and would not have documents like passport or marriage certificate in hand. I talked to the lawyer and she said that if I don't plan to travel abroad, not having a valid passport is ok.
Yesterday I got the plastic card and today I went to apply for a SSN. The lady I talked to refused to take my application, saying that my Romanian passport is considered an "immigration document" and until I have an unexpired one, I should not try to get a SSN. Call me crazy, but since I am a permanent resident doesn't it mean I don't have to leave USA unless I want to???? And even more, how can a document issued by a foreign country be an immigration document, since I'm not applying for SSN based on a visa stamped in that passport.
If anyone went thru the same situation or has some advice for me, please answer.
Thank you
Did anyone get a SSN with their passport expired?
My passport expired in April and the Romanian embassy doesn't renew passports for people who are not US permanent residents or citizens. What I could do was to make a letter of representation for someone in my country, get it certified at one of the Romanian consulates and send all the ORIGINAL documents thru mail in Romania. Since I'm a full time graduate student, even finding time to go to the nearest consulate was almost impossible. I was also worried that we might be asked to show up for an interview and would not have documents like passport or marriage certificate in hand. I talked to the lawyer and she said that if I don't plan to travel abroad, not having a valid passport is ok.
Yesterday I got the plastic card and today I went to apply for a SSN. The lady I talked to refused to take my application, saying that my Romanian passport is considered an "immigration document" and until I have an unexpired one, I should not try to get a SSN. Call me crazy, but since I am a permanent resident doesn't it mean I don't have to leave USA unless I want to???? And even more, how can a document issued by a foreign country be an immigration document, since I'm not applying for SSN based on a visa stamped in that passport.
If anyone went thru the same situation or has some advice for me, please answer.
Thank you
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jindhal
04-30 02:11 PM
Does anyone else have the same problem. The webcast is erroring out.. saying page not found .
danu2007
07-13 04:33 PM
I already sent Certified letters to Minnesota Senators..
State Rep - Erik Paulsen
State Senator - David Hann
US Rep - Jim Ramstad
US Senator - Amy Klobuchar
US Senator - Norm Coleman
State Rep - Erik Paulsen
State Senator - David Hann
US Rep - Jim Ramstad
US Senator - Amy Klobuchar
US Senator - Norm Coleman
Totoro
05-02 09:25 AM
Please contact me, PM or post, if you are willing to be interviewed for a news story on this. You should be a professional in the San Jose / Bay area, although anyone in California should contact me. I will forward your information to the reporter.
On a related note, I have gone through the laws and regulations and the SSA is required to provide SSN for valid non-work purposes. I have compiled an extensive argument to support this case and I am currently in the process of getting the SSA to recognize the stimulus payment as a valid reason as required by the Social Security Act. If my petition is successful, it will set a precedent for others affected by the ITIN rule.
Also, you are not a nonresident if you live in the USA. According to one of the replies I received from the SSA.
"Under the IRC, therefore, an alien who is a nonresident for immigration purposes (i.e., not admitted for permanent residence) may be treated as a resident for tax purposes, if he meets the substantial presence test. Therefore, he could be eligible for the tax credit. However, he may not be eligible for a SSN if he wants one solely for the tax credit."
I disagree with the last sentence and I am currently beginning the appeals process. I am willing to share the regulations and laws that support my case but I am wondering how to best share this information with others who may also want to get involved.
On a related note, I have gone through the laws and regulations and the SSA is required to provide SSN for valid non-work purposes. I have compiled an extensive argument to support this case and I am currently in the process of getting the SSA to recognize the stimulus payment as a valid reason as required by the Social Security Act. If my petition is successful, it will set a precedent for others affected by the ITIN rule.
Also, you are not a nonresident if you live in the USA. According to one of the replies I received from the SSA.
"Under the IRC, therefore, an alien who is a nonresident for immigration purposes (i.e., not admitted for permanent residence) may be treated as a resident for tax purposes, if he meets the substantial presence test. Therefore, he could be eligible for the tax credit. However, he may not be eligible for a SSN if he wants one solely for the tax credit."
I disagree with the last sentence and I am currently beginning the appeals process. I am willing to share the regulations and laws that support my case but I am wondering how to best share this information with others who may also want to get involved.