H-1B FATCA: (New) Why H-1B Visa Holders File FATCA 2021
H-1B FATCA & FBAR
H-1B FATCA & FBAR: The H-1B visa FATCA & FBAR rules for disclosing overseas accounts are complex. That is because an H-1B visa Holder is not considered a U.S. Person in the same way that a U.S. Citizen or a Legal Permanent Resident is held out to be by default, a U.S. person.
Therefore, many H-1B visa holders are not even on notice that they have U.S. status, and an FBAR filing requirement. When this is compounded by the fact that the IRS has taken an aggressive approach to foreign accounts compliance and unreported foreign income – compliance is important to avoid offshore penalties.
Let’s review the H-1B FATCA & FBAR rules.
Substantial Presence Test and H-1B FATCA & FBAR
Our Board-Certified Tax Law Specialist team explains how a foreign person (non-U.S. Citizen, non-U.S. Permanent Resident) who meets the IRS Substantial Presence Test, is taxed on their worldwide income — even through they are not U.S. Citizens or Legal Permanent Residents.
When filing a 1040 Tax Return, if the person has foreign bank accounts and meets the minimum threshold requirement, then they are required to file an FBAR (Report of Foreign Bank and Financial Accounts).
Foreign Nationals (Non-U.S. Citizens)
If a Foreign National meets the Substantial Presence Test, they are also required to file a 1040 and FBAR (if they meet certain threshold requirements) even though they are not a US Citizen or Legal Permanent Resident.
U.S. Tax Rules
The problem for many people is that once they have lived in the United States for a certain amount of time, they become subject to regular taxation just as if they were a US citizen or Legal Permanent Resident. Not only does this mean that the United States will tax the person on the worldwide income, but they are also required to comply with all foreign account reporting requirements.
The failure to comply with foreign account reporting may result in significant fines, penalties, and even criminal investigation depending on the facts and circumstances of their case. In addition, if the person is found to be willful and their failure to report then their entire foreign accounts can be subject to a 100% penalty.
The following is a summary of the Substantial Presence Test followed by a summary of FBAR reporting requirements:
Example of How Substantial Presence Works
As a non-US citizen and non-US green card holder, you are generally only required to pay tax on your “US Effectively Connected Income” (money you earn while working in the United States). However, if you qualify for the Substantial Presence Test, then the IRS will tax you on your WORLDWIDE income.
IRS Substantial Presence Test generally means that you were present in the United States for at least 30 days in the current year and a minimum total of 183 days over 3 years, using the following equation:
- 1 day = 1 day in the current year
- 1 day = 1/3 day in the prior year
- 1 day = 1/6 day two years prior
Example A: If you were here 100 days in 2016, 30 days in 2015, and 120 days in 2014, the calculation is as follows:
- 2016 = 100 days
- 2015 = 30 days/3= 10 days
- 2014 = 120 days/6 = 20 days
- Total = 130 days, so you would not qualify under the substantial presence test and NOT be subject to U.S. Income tax on your worldwide income (and you will only pay tax on money earned while working in the US).
Example B: If you were here 180 days in 2016, 180 days in 2015, and 180 days in 2014, the calculation is as follows:
- 2016 = 180 days
- 2015 = 180 days/3= 60 days
- 2014 = 180 days/6 = 30 days
- Total = 270 days, so you would qualify under the substantial presence test and will be subject to U.S. Income tax on your worldwide income, unless another exception applies.
How do H-1B Visa Holders Report FATCA & FBAR?
What if it FATCA or FBAR Wasn’t Reported?
Luckily, many of these penalties can be avoided or minimize by submitting to one of the FBAR Amnesty programs.
Moreover, there are very specific rules and exceptions for non-willful foreign residents.
And, if the H-1B visa holder foreign resident is able to show that they do not meet the substantial presence test in at least one year during the compliance period for tax filings Comedy may be able to sidestep penalties altogether.
We Specialize in Streamlined & Offshore Voluntary Disclosure
Our firm specializes exclusively in international tax, and specifically IRS offshore disclosure, with an emphasis on H-1B FATCA & FBAR compliance.
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.
Less than 1% of Tax Attorneys Nationwide Are Certified Specialists
Our lead attorney is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.
Recent Case Highlights
- We represented a client in an 8-figure disclosure that spanned 7 countries.
- We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
- We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
- We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
- We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.
How to Hire Experienced Offshore Counsel?
Generally, experienced attorneys in this field will have the following credentials/experience:
- 20-years experience as a practicing attorney
- Extensive litigation, high-stakes audit and trial experience
- Board Certified Tax Law Specialist credential
- Master’s of Tax Law (LL.M.)
- Dually Licensed as an EA (Enrolled Agent) or CPA
Interested in Learning More about our Firm?
We specialize in FBAR and FATCA. Contact our firm today for assistance with getting compliant.