2 U.S. Immigration System Typical Temporary Visas Used by Institutions of Higher Education Residency Status for IRS Tax Purposes Processing Payments
5 2 Basic Types of Immigration into the U.S. PERMANENT Permanent Resident or Green Card Holder (Immigrant) Employment Family Humanitarian TEMPORARY Visa Holder (Non-immigrant ) Visits Study Work Other
6 Ticket, or key to entry into the U.S., controlled by State Department NOT a guarantee of admission Permission to present oneself at the border and request entry in a certain visa category
7 Visas are an alphabet soup Categories are arranged according to proposed activities in the U.S., from A (Diplomats) to U (Victims of Criminal Activity) Typical visas used in higher education are F, H, J, M, O, Q, and TN Temporary intent is the key factor for many visa categories including most educational visas
8 Foreign students and scholars have limited work authorization Work authorization is usually limited to a certain period of time and restricted to a particular employer There is no such thing as an Independent Contractor visa
9 For non-immigrants, the I-94 or other entry document is given after the visa is inspected at entry The I-94 card is the work-permit and residence document for most nonimmigrants
11 F-1 students generally have work authorization: For 20 hrs/week on campus during school year Full time on campus during vacations Form I-20 required No employment authorization document (EAD) required, work is incident to status
12 J-1 students generally have work authorization: For 20 hrs/week on campus during school year as part of fellowship or assistantship Full time on campus during vacations Form DS 2019 required No EAD required
13 J-1 Professors and Researchers generally have work authorization: Work as employees of sponsoring institutions Form DS-2019 required EAD not required May lecture at other institutions and receive honoraria with express consent of RO (responsible officer)
14 For professional-level workers who are coming to work for a U.S. employer in a specialty occupation Includes: Engineers Physicists Software developers Systems analysts Economists Others
15 College and university professors generally qualify for H-1B status Education and/or experience in a particular professional background, plus a job offer in the same professional field = eligibility for the H-1B visa category Employer need not justify that a U.S. worker cannot perform the job Duration of stay limited to 3 years but extensions may be granted by USCIS.
16 A Mexican or Canadian in a listed profession may enter the U.S. for one year to work for a U.S. employer in that profession NAFTA provides a schedule or list of professions Includes: University professors Architects Accountants Systems analysts Engineers Scientists Others
17 TN holder may be a salaried employee TN holders may also be independent contractors if providing prearranged professional services and have a written contract Duration of stay limited to one year but extensions may be granted by INS
18 Visitors may enter with B visas, visa waivers such as WB and WT, and border crossing cards. In general, visitors may not perform productive labor in the U.S. Under new proposed regulations, B- 1/B-2 visitors may be granted a minimal period of stay.
19 Attend meetings Lecture Advise and consult Visit business colleagues Negotiate contracts Litigate
20 Visitors may receive honoraria and associated expenses for: A usual academic activity Lasting not more than nine days If visitor has not accepted any payment (including travel reimbursements) from more than five institutions within prior six months (9/5/6 rule)
21 No specific visa categories allow foreign nationals to enter U.S. as independent contractors Some visa categories allow work for multiple employers and/or payment as a contractor, but employers must be specified proceed with caution
22 Executive Order No precludes organizations that violate immigration laws from obtaining or participating in U.S. government contracts.
24 US Citizens U.S. Tax System Lawful Permanent Resident Resident Alien for Tax Purposes Nonresident Foreign National Tax System Nonresident Foreign National for Tax Purposes
25 U.S. Tax System Taxed on worldwide income Receives Forms W-2 and/or 1099 Files Form 1040 tax return Eligible to itemize deductions or claim standard deduction May claim unrestricted withholding allowances at time of payment Nonresident Alien Tax System Taxed only on U.S. sourced income Receives Forms 1042-S and/or W-2 Files Form 1040NR/1040NR-EZ tax return May not claim standard deduction/may claim limited itemized deductions Restricted withholding allowances at time of payment
26 Non-U.S. citizen must pass either of the following tests to be taxed the same as a U.S. citizen: Green Card Test Substantial Presence Test
27 Used to determine permanent resident alien status An individual meets the test on the date his/her permanent resident alien status is approved by USCIS The effective date for permanent resident alien status is the date the individual s passport receives the I-551 stamp
28 The Substantial Presence Test is a calculation of all of the days an individual has been physically present in the U.S. during a period of three years. Individual must be present at least 31 days in the current year, and 183 days during the three-year period that includes the current year and two preceding the current year.
29 Substantial Presence Test # of Days Total Current Year 1 st Preceding Year Divide by 3 2 nd Preceding Year Divide by 6 TOTAL < 183 = Nonresident alien for tax purposes >= 183 = Resident alien for tax purposes
30 Do not count days of actual physical presence in the U.S. if the individual is: Commuting to/from work in the U.S. on a regular basis An exempt individual (e.g., educational visa holders such as F, J, M, Q) In-transit through the U.S. Unable to leave the U.S. for medical reasons.
31 Section 1461 states that if the withholding agent (SDSURF) does not withhold the appropriate amount of tax at the time of payment, the withholding agent will be liable for the tax, plus any penalties and interest regardless of whether the individual pays the tax on his or her tax return.
33 Substantial Presence Test may be either a resident or nonresident alien for tax purposes May be exempt from FICA under an F,J,M, or Q visa Substantial Presence Test generally a nonresident alien for tax purposes Treat as Independent Contractors for tax purposes Withhold at 30%
34 Cont. Standard deduction not allowed, generally required to claim single, one personal withholding allowance, and request additional withholding of $7.60 per week Travel reimbursements permitted in accordance with SDSU Foundation travel policies (accountable plan rules) are not taxable and not reportable Cont. Tax treaty exemptions possible, depending on country of residence and specific activity in U.S. Travel reimbursements situation varies based on visa status and type of payment.
36 Wages Self-employment income Scholarship/fellowship (qualified or non-qualified) Prizes and awards Travel reimbursements Royalties
37 A variety of forms are available depending upon the nature of the payment: Foreign National Information Form Miscellaneous Income Payment Request Independent Contractor Payment Authorization Request & Agreement Foreign National Travel Reimbursement Supplement Nonresident Foreign National Fellowship/ Scholarship Payment Request
38 Foreign National Information Form Complete and attach copies of passport, both sides of I-94, visa or border crossing card, and I-20 (For F-1 Visas) or DS-2019 (For J- 1 Visas), before forwarding to A/P for processing Provides the basic information needed to enter NRA information in Windstar and determine appropriate tax status New form must be completed each calendar year
39 Foreign National Travel Reimbursement Supplement Used to reimburse nonresident aliens for travel in the USA Not used for services If the foreign national is paid for services AND travel, complete the Foreign National Information form. Must meet the accountable plan rule Non taxable or IRS reportable
40 Miscellaneous Income Payment Request Used for both U.S. residents and nonresidents
41 Nonresident Foreign National Fellowship/ Scholarship Payment Request To be used exclusively for payments to nonresident foreign nationals One individual per form Requires completion of Foreign National Information Form, W-8BEN and other required documents Individuals must sign nonresident alien Notice to Recipients of Scholarships and Fellowships Qualified and Non-Qualified Scholarships
42 NRA employee, when hired, will be asked to come to the Payroll Office to complete all necessary forms such as Foreign National Information Form and other IRS forms as needed NRA employee will be asked to provide updated information on an annual basis
43 Form W-7 Application for IRS Individual Taxpayer Identification Number Required if NRA does not already have a taxpayer identification number To be completed by NRA and submitted with all other paperwork for processing A/P will forward to IRS No tax treaty exemptions can be given without an ITIN No ITIN required for services performed outside the USA
44 Form W-8BEN Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding To be completed by NRA and submitted with all other paperwork for processing Establishes that NRA is not a U.S. person Provides ITIN number If applicable, claim a reduced rate of, or exemption from, withholding as a resident of a foreign country with which the U.S. has an income tax treaty Effective Jan. 1, 2004, W-8BEN is required even when individual is performing the work outside the U.S. Required when reimbursing an NRA for travel.
45 Form 8233 Exemption from Withholding on Compensation For Independent Personal Services of a Nonresident Alien Individual To be completed by NRA and submitted with all other paperwork if claiming a reduced rate of, or exemption from, withholding as a resident of a foreign country with which the U.S. has an income tax treaty If treaty exemption is verified based on analysis of all paperwork, 8233 will be forwarded to IRS IRS has 10 days to approve or deny tax treaty exemption. This can delay payment to the individual
46 Type of Income General Immigratio n Status Service or Non- Service Forms Required Withholding Rate if Treaty Not applicable Add l Form Required if Treaty Claimed Independent Personal Services, Honoraria, Entertainers, Artists, etc. Generally, B- 1, WB, WT, J- 1 (nonstudent), TN Service Foreign National Information Form, W- 7 (if TIN needed), W- 8BEN 30% 8233 Scholarship or Fellowship ( in excess of tuition, required fees, books) Generally, B- 1, F-1, J-1, M-1, Q, TN Non- Service Foreign National Information Form, W- 7 (if TIN needed), W- 8BEN 14% (if F, J, M, or Q visa) 30% (all other visas) Scholarship or Fellowship (tuition, required fees, books) Generally, B- 1, F-1, J-1, M-1, Q, TN Non- Service Foreign National Information Form, W- 7 (if TIN needed), W- 8BEN 0% Royalty Any Non- Service Prizes and Awards Any Non- Service Foreign National Information Form, W- 7 (if TIN needed), W- 8BEN Foreign National Information Form, W- 7 (if TIN needed), W- 8BEN 30% 30%
47 Form W-2 Nonresident foreign national employees with tax withholding Resident alien employees Form 1042-S Nonresident foreign national employees with exemption of tax withholding. Non-Resident Foreign National Non-Employee Form 1099 Resident alien independent contractors
49 We are here to help you! You are not expected to become an expert on the taxation of nonresident foreign nationals. You need have only the basic concepts in order to direct individuals and projects/departments to complete the appropriate forms.
50 Always remember to make sure that the NRA has a visa type that will allow payment before promising anything. Please understand that specific questions cannot always be answered until we have ALL the facts.
51 SDSU Research Foundation Web site _forms_ap.html U.S. Department of State IRS International Taxpayer nal/index.html
52 Direct your NRA payroll questions to Naomi Mariscal, Payroll Supervisor Direct your NRA non-employee questions to Judy Williamson, Accounts Payable Supervisor
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