QUESTION:
Awhile ago I wrote you an email regarding traveling to Canada
without the advance parole. I took your advice obviously, to not
do so would have been idiotic. Well in just 2 months I was
approved my Green Card (from start to finish-amazing!!!) and my
card was waiting for me in the mail when I got back home from my
vacation. Now my situation is this...I have a green card and my
fiancé is on a TN visa. When traveling back from Canada we were
weary about the customs officials knowing we were engaged (they
did not ask and we did not tell). They raised a few eyebrows that
I had a green card and my travel companion was on a TN visa (they
also were baffled how I was able to go from TN myself to a green
card...that is what the I-140 Schedule A Nurses is for I told
them but that is another issue...the point is I have my green
card now anyway). They asked if we were related and I told them
"No" because technically we are not and common law in the Ultra
Religious US is not recognized until you have been living
together for about 7 years. We are going to Mexico in October but
have booked our flight separately (but on the same flight) so it
does not look like we are traveling together. Would you recommend
my girlfriend get her green card ASAP? Which is a better route
for her to go? For me to sponsor her or for her to go through
work (she is a nurse too and it would not be a problem)?
=====================================
david ingram replies:
If your lady friend is engaged to be married to a US resident
with a green card and your fiancée intends to live in the US for
more than a year, she is not entitled to a TN visa.
She should not leave the US for any reason until she gets her
green card. Forget about Mexico. If she has to renew, renew by
mail.
If they do find out you are engaged, she will have her TN taken
away at any border with or without you.
What is the sense of asking for advice if you do not take it?
The USA is a sovereign country. You can go to jail for helping
to take (smuggle) an alien who is not qualified across the USA
border.
I have no idea where your seven years for common law marriages in
the USA came from.
If you have been together for a year, Canadian law recognizes you
as a common-law couple no matter what country you are living in.
The US does not care whether you have been living together for a
year or not. If your fiancée had NEVER lived with you but was
going across the border "intending" to live with you, she is
illegal (and not qualified for a TN) unless she could prove it
was only for a short time and that "you" were returning to Canada
within two or three or maybe even six months.
the following is an answer to a question a year ago where the
question was about where he paid the tax and. YOUR situation is
different but the definition of common law marriage might
surprize you.
====================================
Thanks for the reply. I have US medical but have not transferred
my
driver's license. I live here with my common-law wife, but she
did not
work in the US in 2003, so it sounds like the tax advantages
would be
slight.
How much would it be for you to do the 2003 return, and
double-check my
2001 return (very similar situation)?
Thanks,
=====================================================
Go and get your New York Driver;s licence. Unless I am very
mistaken, your job means that you need a New York State Driver;s
licence. You don't as a student, but do when you have a job is
my understanding.
How did your common-law wife get to the US or is she a US
citizen. If she is your Canadian Common-law wife, and there as a
B-2 Visitor AND you have been together for more than a year, I
would suggest that she should be treated as a wife.
Although I realize that this is against the stated policy, I have
likely done over a 100 US returns as joint with common-law wives
and there has been no problem. Remember that you can file a
joint return with your wife if she is in Canada. She does not
have to even be in the United States.
If you were living together in Canada or the following states (in
alphabetical order):
Alabama
Colorado
Idaho
Iowa
Kansas
Montana
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Texas
And the Capital of the United States, the District of Columbia
recognizes Common-Law marriages.
Your common-law marriage would be recognized without question in
these states and indeed in Oklahoma, you could be forced to get a
divorce.
What is a common-law marriage?
"Common law marriage -- One not solemnized in the ordinary way
(i.e. non-ceremonial) but created by an agreement to marry,
followed by cohabitation. A consummated agreement to marry,
between persons legally capable of making marriage contract, per
verba de praesenti, followed by cohabitation. Such marriage
requires a positive mutual agreement, permanent and exclusive of
all others, to enter into a marriage relationship, cohabitation
sufficient to warrant a fulfillment of necessary relationship of
man and wife, and an assumption of marital duties and
obligations." Marshall v. State, Okl.Cr., 537 P.2d 423, 429.
Black's Law Dictionary
If your wife is American, you can bring her back to Canada as a
common-law spouse without question.
see http://www.cic.gc.ca/english/pdf/kits/forms/IMM5490E.PDF
This is your spouse or conjugal partner questionnaire -= FORM
IMM-5490
So, we should file a joint tax return for you as a resident of
the US.
We would report the Canadian income on top of the US income and
the Canadian return would not include the US income.
If it was challenged, the worst that would happen is that you
would pay the tax you would have paid anyway.
Fee For doing 2003 and checking 2001 - $1,000 Cdn. If we then
changed the 2001, likely another $400 Cdn.
estimated tax savings by filing as a US resident, about $2,000
US, more if a joint return.
Hope this helps
david ingram
===================================
The original questions (with some disguise) follows
I'm looking for someone to assist with my taxes.
I'm a Canadian. I worked in Canada from January to August of
2003, and in
the US, on a J1 visa, from October through December.
I did have social security and Medicare withheld from my US
wages.
I earned about $28k in Canada, and about $24k in the US.
I know I can file as a non-resident here in the US and get the SS
and
Medicare back. But I'll be here for a few years, so I could
declare myself
a resident and pay the US taxes on the US earnings, and the
Canadian taxes
on the Canadian earnings.
Can you tell me which would be more tax-advantageous?
Thanks,
=========================================
david ingram replies:
If you are a J1 you are usually considered to be a resident of
Canada for
the purposes of world tax.
That means that you file a 1040NR in the US and then report the
money again
on your Canadian return. In other words, Canada taxes you on
your world
income. This method also allows you to continue with your
provincial
health coverage for up to five years.
However, if you have US medical and you have a New York Driver's
licence
(which you need if working there but not if a full time student)
then I
would file you as a world resident of the US and what should be a
slightly
lower tax rate if you are single and a greatly reduced tax rate
if you are
married and file a joint return in the US.
I would be glad to look after these for you.
=================================================
Answers to this and other similar questions can be obtained free
on Air every Sunday morning.
Every Sunday at 9:00 AM on 600AM in Vancouver, I, david ingram am
a permanent guest on Fred Snyder of Dundee Wealth Managers' LIVE
talk show called "ITS YOUR MONEY"
Those outside of the Lower Mainland will be able to listen on the
internet at
www.600AM.com
Call (604) 280-0600 to have your question answered. BC listeners
can also call 1-866-778-0600.
Callers to the show and questioners on this board can also attend
the Thursday Night seminars on finance and making your Canadian
Mortgage Interest deductible.
David Ingram's US/Canada Services
US / Canada / Mexico tax, Immigration and working Visa
Specialists
US / Canada Real Estate Specialists
Home office at:
4466 Prospect Road
North Vancouver, BC, CANADA, V7N 3L7
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Calls welcomed from 9 AM to 9 PM 7 days a week (please do not fax
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email to taxman at centa.com
www.centa.com www.david-ingram.com
Disclaimer: This question has been answered without detailed
information or consultation and is to be regarded only as general
comment. Nothing in this message is or should be construed as
advice in any particular circumstances. No contract exists
between the reader and the author and any and all non-contractual
duties are expressly denied. All readers should obtain formal
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message, this disclaimer must be included."
Be ALERT, the world needs more "lerts"
This from "ask an income tax and immigration expert" from
www.centa.com or www.jurock.com or www.featureweb.com. David
Ingram deals on a daily basis with expatriate tax returns with:
multi jurisdictional cross and trans border expatriate problems
for the United States, Canada, Mexico, Great Britain, the United
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Pakistan, Afghanistan, Mali, Bangkok, Greenland, Iceland, Cuba,
Bahamas, Bermuda, Barbados, St Vincent, Grenada,, Virgin Islands,
US, UK, GB, and any of the 43 states with state tax returns, etc.
Rockwall, Dallas, San Antonio and Houston Texas
Denmark, Finland, Sweden Norway Bulgaria Croatia Income Tax and
Immigration Tips, Income Tax and Immigration Wizard Income Tax
and Immigration Guru Income Tax and Immigration Consultant Income
Tax and Immigration Specialist Section 216(4) 216(1) NR6 NR-6 NR
6 Non-Resident Real Estate tax specialist expert preparer
consultant expatriate anti money laundering money seasoning
FINTRAC E677 E667 4789 4790 TDF-90 Reporting $10,000 cross border
transactions
This from "ask an income tax and immigration expert" from
www.centa.com or www.jurock.com or www.featureweb.com. David
Ingram deals on a daily basis with expatriate tax returns with:
multi jurisdictional cross and trans border expatriate problems
for the United States, Canada, Mexico, Great Britain, the United
Kingdom, Kuwait, Dubai, Saudi Arabia, Thailand, Indonesia, Japan,
China, New Zealand, France, Germany, Spain, Italy, Russia,
Georgia, Brazil, Peru, Ecuador, Bolivia, Scotland, Ireland,
Hawaii, Florida, Montana, Morocco, Israel, Iraq, Iran, India,
Pakistan, Afghanistan, Mali, Bangkok, Greenland, Iceland, Cuba,
Bahamas, Bermuda, Barbados, St Vincent, Grenada,, Virgin Islands,
US, UK, GB, and any of the 43 states with state tax returns, etc.
Rockwall, Dallas, San Antonio and Houston Texas
Denmark, Finland, Sweden Norway Bulgaria Croatia Income Tax and
Immigration Tips, Income Tax and Immigration Wizard Income Tax
and Immigration Guru Income Tax and Immigration Consultant Income
Tax and Immigration Specialist Section 216(4) 216(1) NR6 NR-6 NR
6 Non-Resident Real Estate tax specialist expert preparer
consultant expatriate anti money laundering money seasoning
FINTRAC E677 E667 4789 4790 TDF-90 Reporting $10,000 cross border
transactions
Alaska, Alabama, Arkansas, Arizona,
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