# Is she a resident alien or a non resident alien?



## crisvic (Jan 25, 2020)

Would appreciate your opinion.
In 1970 u.s. husband gets her NRA wife a greencard. After 6 years of living in the U.S she goes back to her home country. In 1989, husband tried to get her back, but was told at the consulate her greencard was no longer valid. Husband applied for a reentry visa but she refused to come back. After several calls and letters from the Embassy (which she ignored) the visa section sent her the attached letter.
Husband sent a letter to the Embassy about her intention of not coming back. But she had lost her greencard and it couldn,t be returned or abandoned. Just a letter...
Question. Can she still be considered a resident since she didn,t returned the greencard, or the Embassy visa section,s decition to cancel-destroy her visa would automatically exclude her as a resident for tax purposes? Thanks so much.


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## Moulard (Feb 3, 2017)

You asked pretty much the same question a few months ago.

Treasury Regulations Section 301.7701(b)-1(b)(3) says in part...



> If the alien initiates this determination, resident status is considered to be abandoned when the individual’s application for abandonment (INS Form I-407) *or a letter stating the alien’s intent to abandon his or her resident status*, with the Alien Registration Receipt Card (INS Form I-151 or Form I-551) enclosed, is filed with the INS or a consular officer.
> ...
> For purposes of this paragraph, an alien individual shall be considered to have filed a letter stating the intent to abandon resident status with the INS or a consular office if such letter is sent by certified mail, return receipt requested (or a foreign country's equivalent thereof). A copy of the letter, along with proof that the letter was mailed and received, should be retained by the alien individual.


So a letter is fine. It could be questioned if the husband not non-US person wife wrote the letter, but given the response from the consulate/embassy I would take it the letter met the intent of the regulations.


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## 255 (Sep 8, 2018)

@crisvic -- Normally, NRA spouses, of U.S. citizens get a "provisional" Green Card (valid for 2 years,) if they have been married less than two years and then get the normal 10-year Green Card on renewal. Irrespective of the length of the Green Card, if an NRA stays outside the U.S. for one year or more, there is a presumption (the "1-year rule,") that they intended to abandon their U.S. residency. So, if she left the U.S. in 1976, with the intent not to return (and in fact hasn't,) she is no longer a permanent resident, for tax, or any other purposes. Cheers, 255


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## Moulard (Feb 3, 2017)

The tax and immigration regulations are not aligned. Given the mention of living in the US for 6 years, the reference to provisional greencards and the 1 year rule are moot because those are immigration provisions not tax provisions.

From a tax perspective, stupid as it is, under 26 CFR § 301.7701(b)-1(b)(1), Resident status is *deemed to continue* unless it is rescinded or administratively or judicially determined to have been abandoned. 

Administrative abandonment occurs when an individual files I-407, or writes a letter to a consular officer indicating intent to abandon; which is what happened in this case back in Nov 1995 by the look of it.


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## crisvic (Jan 25, 2020)

Thank you so much


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