Tax/immigration questions for Canadian w/ increasing US ties

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redfalcon
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Joined: Mon Nov 13, 2017 12:03 pm

Tax/immigration questions for Canadian w/ increasing US ties

Post by redfalcon » Mon Nov 13, 2017 12:06 pm

Looking for pre-planning advice for tax/immigration situation. Trying to sort through all the information out there but it is often unclear and sometimes conflicting.

I am a Canadian citizen working in Canada and my wife is a US citizen working in the US. We have been married for over three years but we haven't done any paperwork for my Green Card yet. We have just been making frequent trips back and forth and I have remained below 120 days in any given year to avoid being a US resident for tax purposes under the Substantial Presence Test.

Next year we will be expecting our second child and I will be taking at least seven months of leave from work to be with my wife and children in the US in 2018. This will be done in two chunks to avoid going over six months during a single visit. I will be back to work for a couple months between the two leave periods.

The two leave periods plus trips before the birth will put me over 183 days in the US in 2018. That would make me a US resident for tax purposes and I wouldn't be able to claim the Closer Connection Exception. Also, since I'll be spending more time in the US going forward and the plan is for me to live in the US eventually, I thought this would be a good time to start the process for my Green Card.

So here are my questions:
1) Looks like I will be filing US taxes for 2018, but what am I filing? 1040? 1040NR with Form 8833? Help! Can my wife and I file as married filing jointly in the US?
2) Should I close my RRSP ($20K worth)and TFSA accounts? If so, should I do so before the end of this year or can I wait until some time next year?
3) Can I start the Green Card process while I am in the US as a visitor? I read somewhere that this is a no-no. If not, what is the best way to start the Green Card process that would give me the flexibility to go back and forth between the US and Canada while the application is being processed since I will need to do so to visit my family in the US and go back to work in Canada.

nelsona
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Post by nelsona » Wed Nov 15, 2017 10:27 am

Can you ask this on the tax forum please. I will answer you there.

But for immigration, you will eventually have problems entering the US after a while, because of spending less time in Canada, you will be presumed to be immigrating to US (I'm surprised you haven't faced this yet). So you need to carry iron-clad proof that you are going back to Canada.
Otherwise the CBP will insist that you file for and obtain a IR visa in Canada, and keep you apart. The next time you are in US for any length of time, I would be filing the I-130/I-485, etc, to get you your travel and work documents. That will avoid a long separation.

tax info on the other forum.
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nelsona
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Post by nelsona » Wed Nov 15, 2017 10:42 am

just o elaborate on the Grren card process, for one who is already married to a US citizen who lives in US;

You have 2 options: one is by applying for a consular IR visa in Canada, the other is as I outlined above: Adjusting while in US.


Adjusting:
You would only have to stay in US (as a tourist is fine) for the time it takes to file I-485 etc until you get your Advance parole document. Then you can come and go as you please, and will eventually get your GC. Usually 3 months. the only danger, as I mentioned above, is that before you file, the CBP could -- on any entry in the past 3 years or now -- that you are immigrating, and force you to do the consular process, messing up your current plans.

In Canada, you will need to apply for a IR (immediate relative) visa. During the visa process you have to stay in Canada. I don't know the appointment and processing times for IR visa.
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nelsona
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Post by nelsona » Wed Nov 15, 2017 10:48 am

IR I think would take 6 months.
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nelsona
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Post by nelsona » Wed Nov 15, 2017 10:50 am

And why it is not a no-no to cross the border and file as a tourist is because you are immigrating basded on marriage to a US citizen, which has a lot of forgiveness clauses. If you were immigrating for work, and tried that (without waiting 60/90 days after crossing, you *could* be accused of fraudulent entry. That simply doesn't happen for marriage based.
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