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United States
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Email: eric.gerstein@ca.ey.com
A. Income tax
Who is liable
Territoriality. US citizens and resident aliens are subject to tax on
their worldwide income, regardless of source. US citizens and
resident aliens may exclude, however, up to USD101,300 (for
2016) of their foreign-earned income plus certain housing
expenses if they meet specified qualifying tests and if they file
US tax returns to claim the exclusion.
U N I T E D S TAT E S 1473
A nonresident alien is subject to US tax on income that is effec-
tively connected with a US trade or business and on US-source
fixed or determinable, annual or periodic gains, profits and in-
come (generally investment income, including dividends, royalties
and rental income). US-source investment income is taxed on a
gross basis at a flat rate of 30%. Income effectively connected
with a US trade or business is taxed after subtracting related
deductions at the graduated rates listed in Rates. Portfolio interest
and, generally, capital gains from the sale of stock in a US com-
pany are exempt from the 30% tax. Moreover, an election to tax
rental income on a net basis is available. However, gains from
sales of US real property interests are usually considered to be
effectively connected income, and special complex rules apply.
Definition of resident. Residence for income tax purposes gen-
erally has no bearing on an individuals immigration status.
Generally, foreign nationals may be considered resident aliens if
they are lawful permanent residents (green card holders; see
Section G) or if their physical presence in the United States meets
the substantial presence test. Under the substantial presence test,
a foreign national is deemed to be a US resident if the individual
fulfills both of the following conditions:
The individual is present in the United States for at least 31 days
during the current year.
The individual is considered to have been present in the United
States for at least 183 days during a consecutive three-year test
period that includes the current year, using a formula weighted
with the following percentages:
Current year 100.00%
1st preceding year 33.33%
2nd preceding year 16.67%
For example, 122 days of presence during each of the three
consecutive years causes a foreign national to be considered a
US resident under the substantial presence test.
Among several exceptions to the substantial presence test are the
following:
Days present as a qualified student, teacher or trainee, or if a
medical condition prevented departure, are not counted.
An individual might claim to be a nonresident of the United
States by virtue of having a closer connection (such as a tax
home) to a foreign country.
Bilateral income tax treaties may override domestic US tax
rules for dual residents.
The Internal Revenue Service (IRS) has issued regulations that
require individuals to file statements with the IRS setting forth the
facts that prove their claims for exemption.
In certain circumstances, it may be beneficial for an individual to
be considered a resident of the United States for income tax pur-
poses. An individual may make what is known as a first-year
election to be treated as a resident in the year of arrival if certain
conditions are met.
Income subject to tax. In general, gross income must be segre-
gated into the following three separate baskets:
1474 U N I T E D S TAT E S
Earned income, which is generally salary and earnings from
active trades or businesses
Portfolio income, which is generally investment income, includ-
ing interest, dividends, certain royalties and gains from the
disposition of investment property
Passive income, which is generally income from traditional tax-
shelter investments including real estate
Examples of items that are not included in taxable income are
gifts, unrealized appreciation in the value of property, interest
received on municipal bonds, certain amounts received (for
example, death benefits paid) under US qualified life insurance
contracts, certain employer-paid education costs, employer-paid
retirement planning services and qualified distributions from Roth
individual retirement accounts (IRAs) or education savings
accounts.
Employment income. In addition to cash payments, taxable salary
generally includes all employer-paid items, except qualifying
moving expenses, medical insurance premiums, pension contri-
butions to a US qualified plan and, for qualifying individuals on
short-term assignments of one year or less, meals and temporary
housing expenses.
Education allowances provided by employers to their employees
children are taxable for income and social security tax purposes.
In general, a nonresident alien who performs personal services as
an employee in the United States at any time during the tax year
is considered to be engaged in a US trade or business. An excep-
tion to this rule applies to a nonresident alien performing ser-
vices in the United States if all of the following conditions apply:
The services are performed for a foreign employer.
The employee is present no more than 90 days during the tax
year.
Compensation for the services does not exceed USD3,000.
These conditions are similar to those contained in many income
tax treaties, although the treaties often expand the time limit to
183 days and increase or eliminate the maximum dollar amount
of compensation.
If an employee does not fall under the above statutory exception
or under a treaty exception, all US-source compensation received
in that year is considered effectively connected income (not just
the amount exceeding the USD3,000 limitation or the dollar
limitation under a treaty). This income includes wages, bonuses
and reimbursements for certain living expenses paid to, or on
behalf of, the employee.
Compensation is considered to be from a US source if it is paid
for services performed in the United States. The place where the
income is paid or received is irrelevant in determining its source.
If income is paid for services performed partly in the United
States and partly in a foreign country, and if the amount of income
attributable to services performed in the United States cannot be
accurately determined, the US portion is determined on a work-
day ratio basis. Fringe benefits that meet certain requirements are
sourced to the persons principal place of work. These benefits
U N I T E D S TAT E S 1475
include moving expenses, housing, primary and secondary edu-
cation for dependents and local transportation.
Effectively connected income retains its character even if received
before or after a US trade or business ceases operations. Conse-
quently, wages for services performed in the United States, but
received during a year in which a nonresident alien reports no US
workdays, are taxed at the graduated rates instead of the flat 30%
rate.
States often follow the federal tax treatment in determining if a
nonresident aliens income is subject to state taxation; however,
certain states tax income of a nonresident regardless of federal tax
treatment or treaty relief.
Self-employment income. In general, a nonresident alien who per-
forms independent personal services in the United States at any
time during the tax year is considered to be engaged in a US trade
or business.
Although subject to tax at the graduated rates, compensation paid
to a nonresident alien for performing independent personal ser-
vices in the United States is subject to a 30% withholding tax. A
nonresident alien must file a US tax return to claim a refund or
to pay any additional tax due. If compensation is exempt from US
tax under an income tax treaty or if the amount paid is not
greater than the personal exemption amount (USD4,050 in
2016), a nonresident alien may request exemption from withhold-
ing by preparing Form 8233, Exemption from Withholding on
Compensation for Independent Personal Services of a Non-
resident Alien Individual, and then giving it to the withholding
agent (payer). In addition, many US income tax treaties contain
separate provisions affecting the taxation of independent per-
sonal services income.
Investment income. Dividends, interest income and capital gains
are considered portfolio income and are generally taxed at the
ordinary rates (however, see Capital gains and losses, and
Dividends). Certain types of interest income, including interest
on certain state and local government obligations, are exempt
from federal tax, but may be subject to alternative minimum tax
(AMT; see Rates).
Net income from the rental of real property and from royalties is
aggregated with other income and taxed at the rates set forth in
Rates.
Directors fees. In general, directors fees are considered to be
earnings from self-employment (see Self-employment income).
Deferred compensation and participation in foreign pension plans.
The United States has very complex rules regarding the taxation
of deferred compensation. If a plan of deferral does not meet the
requirements of the law, significant penalties and interest may be
charged. Complex rules apply to the taxation related to participa-
tion in a non-US retirement plan. In many cases, continued par-
ticipation in the home country plan may result in income that is
taxable in the United States. Certain income tax treaties attempt
to address this issue.
1476 U N I T E D S TAT E S
Taxation of employer-provided stock options
Qualified stock option plans. Under incentive stock option (ISO)
rules, options provided to employees under qualified stock option
plans are not subject to tax at the time the option is granted nor at
the time the employee exercises the option and buys the stock.
However, at the time of exercise, the difference between the exer-
cise price and the fair market value of the stock at the date of
exercise is considered a tax preference item for AMT purposes
(see Rates). Tax is levied at capital gains tax rates when the
employee sells the stock (see Capital gains and losses). The
employees basis in the stock is the amount paid for the stock at
the time the option is exercised. Consequently, the employee
recognizes a capital gain or loss in the amount of the difference
between the sale price and the grant price. For purposes of deter-
mining whether the capital gain is long-term or short-term, the
holding period begins on the date after the option is exercised, not
on the date the option is granted. Stock purchased under an ISO
may not be sold within two years from the grant date and within
one year from the exercise date. If the stock is sold before the
expiration of the required holding period, any gain on the sale is
treated as ordinary income.
Non-qualified stock option plans. A stock option provided to an
employee under a non-qualified plan is taxed when it is granted
if the option has a readily ascertainable fair market value at that
time. An option that is not actively traded on an established mar-
ket has a readily ascertainable fair market value only if all of the
following conditions are met:
The option is transferable.
The option is exercisable immediately and in full when it is
granted.
No conditions or restrictions are placed on the option that would
have a significant effect on its fair market value.
The fair market value of the option privilege must be readily
ascertainable.
The above conditions are seldom satisfied. Consequently, most
non-qualified options that are not traded on an established mar-
ket do not have a readily ascertainable fair market value and are
not taxable at the date of grant.
The exercise of a non-qualified stock option triggers a taxable
event. An employee recognizes ordinary income in the amount of
the value of the stock purchased, less any amount paid for the
stock or the option. When the stock is sold, the difference between
the sale price and the fair market value of the stock at the date of
exercise, if any, is taxed as a capital gain.
Capital gains and losses. Net capital gain income is taxed at ordi-
nary rates, except that the maximum rate for long-term gains is
limited to the following:
0% for individuals in the 10% or 15% bracket
20% for individuals in the 39.6% bracket
15% for individuals in all other brackets
Net capital gain is equal to the difference between net long-term
capital gains over net short-term capital losses. Long-term refers
to assets held longer than 12 months. Short-term capital gains are
taxed as ordinary income at the rates set forth in Rates.
U N I T E D S TAT E S 1477
Investors who hold qualified small business stock may be
entitled to exclude from income part or all of the gain realized on
disposition of the stock.
Once every two years, US taxpayers, including resident aliens,
may exclude up to USD250,000 (USD500,000 for married taxpay-
ers filing jointly) of gain derived from the sale of a principal
residence. To be eligible for the exclusion, the taxpayer must
generally have owned the residence and used it as a principal
residence for at least two of the five years immediately preceding
the sale. However, if a taxpayer moves due to a change in place
of employment, for health reasons or as a result of unforeseen
circumstances, a fraction of the maximum exclusion amount is
allowed in determining whether any taxable gain must be report-
ed. The numerator of the fraction is generally the length of time
the home is used as a principal residence, and the denominator is
two years. The repayment of a foreign currency mortgage obliga-
tion may result in a taxable exchange-rate gain, regardless of any
economic gain or loss on the sale of the principal residence. In
certain cases, part of the gain on the sale of a principal residence
may not be eligible for exclusion. To the extent the taxpayer has
non-qualified use of the property, that portion of the gain
(determined on a time basis over the total holding period of the
property) is not eligible for exclusion from income. A complex
set of rules applies to determine whether a particular use of the
property, such as renting out the property or leaving it vacant, is
considered a non-qualified use.
Capital losses are fully deductible against capital gains. However,
net capital losses are deductible against other income only up to
an annual limit of USD3,000. Unused capital losses may be car-
ried forward indefinitely. Losses attributable to personal assets
(for example, a personal residence or an automobile) are not
deductible.
Dividends. Dividends received by individuals from domestic cor-
porations and qualified foreign corporations are taxed at the
same special rates as those applicable to net capital gains, for
both the regular tax and the alternative minimum tax.
Consequently, dividends are taxed at the following rates:
0% for individuals in the 10% or 15% bracket
20% for individuals in the 39.6% bracket
15% for individuals in all other brackets
To qualify for the 15% (or 0% or 20%) tax rate, the shareholder
must hold a share of stock for more than 60 days during the
120-day period beginning 60 days before the ex-dividend date.
Other dividends are taxed at ordinary rates.
Deductions
Deductible expenses. Certain types of deductions, including
amounts related to producing gross income, are subtracted to
arrive at adjusted gross income. Alimony payments to a former
spouse and qualifying unreimbursed moving expenses are among
the most commonly claimed deductions in this category. Alimony
(but not child support) must meet certain criteria, and must be
included in the recipients gross income, to be deductible by the
payer. A tax of 30% generally must be withheld (and remitted to
the IRS) from alimony paid by a US citizen or resident to a
1478 U N I T E D S TAT E S
nonresident-alien former spouse. Certain US income tax treaties
may reduce the 30% withholding tax rate (see Section E).
An individual whose tax home is outside the United States may
be able to deduct away-from-home travel and living expenses that
relate to work in the United States. US tax law provides for the
deduction of ordinary and necessary travel and living expenses in
performing services while an individual is temporarily away from
home. US assignments of one year or less are usually presumed
to be temporary, and assignments of more than one year are gen-
erally considered permanent.
Complex rules determine eligibility for other deductions from
gross income. For example, depending on the taxpayers income
level, interest of up to USD2,500 on qualified educational loans,
and individual retirement account (IRA) contributions of up to
USD5,500 (USD6,500 if age 50 or older at the end of 2016) may
be deducted.
After adjusted gross income is determined, a citizen or resident
alien is entitled to claim the greater of itemized deductions or a
standard deduction. The amount of the standard deduction varies,
depending on the taxpayers filing status. For 2016, the standard
deduction is USD12,600 for married individuals filing a joint
return, USD9,300 for a head of household, USD6,300 for a single
(not married) individual and USD6,300 for a married taxpayer
filing a separate return.
Itemized deductions include the following items:
Unreimbursed medical expenses to the extent that they exceed
10% of adjusted gross income (7.5% if age 65 or older)
Income, general sales and property taxes of states and localities
Foreign income taxes paid if a foreign tax credit is not elected
Certain interest expense, generally home mortgage interest and
investment interest expense
Casualty and theft losses to the extent that they exceed 10% of
adjusted gross income
Gambling losses to the extent of gambling winnings
Charitable contributions made to qualified US charities
Unreimbursed employee business expenses and other miscel-
laneous itemized deductions, to the extent that the net total
exceeds 2% of adjusted gross income
Itemized deductions, other than medical expenses, casualty, theft
and gambling losses, and investment interest expense, must be
reduced by an amount equal to 3% of the taxpayers 2016 adjusted
gross income in excess of USD311,300 (married persons filing
jointly), USD285,350 (head of household), USD259,400 (single
persons) or USD155,650 (married persons filing separately). The
reduction amount may not reduce the amount of itemized deduc-
tions by more than 80%.
A nonresident alien may not use the standard deduction instead of
actual itemized deductions. Also, the types of itemized deductions
a nonresident alien may claim are limited to casualty losses, chari-
table contributions made to qualified US charities, certain miscel-
laneous deductions, and state and local taxes imposed on effec-
tively connected income. A nonresident alien may not claim an
itemized deduction for medical expenses, taxes (other than state and
U N I T E D S TAT E S 1479
local income taxes) or most interest expenses. In addition, a non-
resident alien is normally entitled to only one personal exemption.
Personal exemptions. Individuals who are not dependents of other
taxpayers are entitled to deduct a personal exemption in arriving
at taxable income. For 2016, each personal exemption equals
USD4,050. US citizens and residents are generally each entitled
to claim an additional personal exemption for a spouse if a joint
return is filed. However, if the spouse is a nonresident alien and
a joint return is not filed, the taxpayer may claim this exemption
only if the spouse has no US-source gross income and is not a
dependent of another taxpayer. Additional personal exemptions
may be claimed for each qualified dependent who is a US citizen
or, in certain circumstances, a resident of the United States,
Canada or Mexico for some part of the tax year. US income tax
treaties may modify the preceding rules.
Personal exemptions are phased out by 2% for each USD2,500
(or part thereof) by which 2016 adjusted gross income exceeds
USD311,300 (married persons filing jointly), USD285,350 (head
of household) or USD259,400 (single persons). For married per-
sons filing separately, the exemptions are phased out by 2% for
each USD1,250 by which adjusted gross income exceeds
USD155,650.
Business deductions. Self-employed individuals are entitled to the
same deductions as employees, except that they may also deduct
directly related ordinary and necessary business expenses. How-
ever, special rules may apply to limit business deductions if a
taxpayers business activity does not result in a profit for three
out of five years. In this situation, the activity may be classified
as a hobby, and the expenses are deductible only if they qualify
as itemized deductions. Self-employed individuals may establish,
and may deduct contributions paid to, their own retirement plans,
subject to special limitations.
Rates. The applicable US tax rates depend on whether an individ-
ual is married or not and, if married, whether an individual elects
to file a joint return with his or her spouse. Certain individuals
also qualify to file as heads of households.
Unmarried nonresident aliens are taxed under the rates for single
individuals. Married nonresidents whose spouses are also non-
residents are generally taxed under the rates for married persons
filing separately.
The tax brackets and rates for 2016 are set forth in the tables
below. The income brackets in these tables are indexed annually
for inflation. The following are the tables.
Married filing joint return
Taxable income Tax rate Tax due Cumulative tax due
USD % USD USD
First 18,550 10 1,855.00 1,855.00
Next 56,750 15 8,512.50 10,367.50
Next 76,600 25 19,150.00 29,517.50
Next 79,550 28 22,274.00 51,791.50
Next 181,900 33 60,027.00 111,818.50
Next 53,600 35 18,760.00 130,578.50
Above 466,950 39.6
1480 U N I T E D S TAT E S
Married filing separate return
Taxable income Tax rate Tax due Cumulative tax due
USD % USD USD
First 9,275 10 927.50 927.50
Next 28,375 15 4,256.75 5,183.75
Next 38,300 25 9,575.00 14,758.75
Next 39,775 28 11,137.00 25,895.75
Next 90,950 33 30,013.50 55,909.25
Next 26,800 35 9,380.00 65,289.25
Above 233,475 39.6
Head of household
Taxable income Tax rate Tax due Cumulative tax due
USD % USD USD
First 13,250 10 1,325.00 1,325.00
Next 37,150 15 5,572.50 6,897.50
Next 79,750 25 19,937.50 26,835.00
Next 80,650 28 22,582.00 49,417.00
Next 202,550 33 66,841.50 116,258.50
Next 27,650 35 9,677.50 125,936.00
Above 441,000 39.6
Single individual
Taxable income Tax rate Tax due Cumulative tax due
USD % USD USD
First 9,275 10 927.50 927.50
Next 28,375 15 4,256.25 5,183.75
Next 53,500 25 13,375.00 18,558.75
Next 99,000 28 27,720.00 46,278.75
Next 223,200 33 73,656.00 119,934.75
Next 1,700 35 595.00 120,529.75
Above 415,050 39.6
The above rates are used to compute an individuals regular fed-
eral tax liability. In addition, higher income taxpayers (income
over USD250,000 for married filing jointly and USD200,000 for
single) are subject to a 3.8% tax on their net investment
income. The definition of net investment income is broad and
essentially includes all income other than income from a trade or
business. Compensation from personal services is generally
excluded from this tax.
The United States also imposes alternative minimum tax (AMT)
at a rate of 26% on alternative minimum taxable income, up to
USD186,300, and at a rate of 28% on alternative minimum tax-
able income exceeding USD186,300 (long-term capital gains
and qualified dividends are generally taxed at lower rates of
15% or 20%; see Capital gains and losses and Dividends). The
primary purpose of AMT is to prevent individuals with substantial
income from using preferential tax deductions (such as acceler-
ated depreciation), exclusions (such as certain tax-exempt
income) and credits to substantially reduce or to eliminate their
tax liability. It is an alternative tax because, after an individual
computes both the regular tax and AMT liabilities, the greater of
the two amounts constitutes the final liability.
U N I T E D S TAT E S 1481
Some states, cities and municipalities also levy income tax. City
or municipal income tax rates are generally 1% or lower. However,
the top 2016 rate for residents of New York City is 3.876%. State
income tax rates generally range from 0% to 12%. Therefore, an
individuals total income tax liability depends on the state and the
municipality where the individual resides or works. For a list of
maximum state and certain local tax rates, see Appendix 1.
Credits. Tax credits directly reduce income tax liability rather than
taxable income and therefore provide a dollar-for-dollar benefit.
Most credits are limited, depending on the taxpayers income
level. Credits include a maximum USD13,400 credit for quali-
fied adoption expenses, a USD1,000 child tax credit for depen-
dents under 17 years of age and two alternative higher education
credits, with maximums of USD2,000 and USD2,500, respec-
tively.
Relief for losses. In general, passive losses, including those gen-
erated from limited-partnership investments or rental real estate,
may be offset only against income generated from passive
activities.
Limited relief may be available for real estate rental losses. For
example, an individual who actively participates in rental activity
may use up to USD25,000 of losses to offset other types of
income. The USD25,000 offset is phased out for taxpayers with
adjusted gross income of between USD100,000 and USD150,000,
and special rules apply to married individuals filing separate tax
returns.
Disallowed losses may be carried forward indefinitely and used to
offset net passive income in future years. Any remaining loss may
be used in full when a taxpayer sells the investment in a transac-
tion that is recognized for tax purposes.
B. Other taxes
Net worth tax. No federal tax is levied on an individuals net worth.
However, some states and municipalities impose a tax on an
individuals net worth.
Estate and gift tax. US estate and gift taxes are imposed at
graduated rates ranging from 18% to 40% on the value of prop-
erty transferred by reason of death or gift. In general, citizens and
residents are entitled to a unified exemption of USD5 million
(indexed for inflation; USD5,450,000 for 2016) on these taxes. A
third transfer tax, known as the generation-skipping transfer
(GST) tax, operates under a complex set of rules.
In general, transfers between spouses who are US citizens, or
from a non-US citizen to a US citizen spouse, are not subject to
estate or gift taxes. However, transfers from a US citizen to a
non-US citizen spouse may be subject to estate or gift tax.
Like US income tax rules, US estate and gift tax rules differ,
depending on whether a foreign national is considered to be a
resident or nonresident alien. However, the distinction between
residents and nonresidents differs from that under US income tax
rules. For estate and gift tax purposes, a nonresident is a foreign
1482 U N I T E D S TAT E S
national who is not a US citizen and whose domicile is outside
the United States at the date of death or gift. A persons domicile
is defined generally as the place the individual regards as his or
her permanent homethat is, the place where he or she intends
to return, even after a period of absence.
Application of US estate and gift tax rules may be modified if a
nonresident alien is a resident of a country that has entered into
an estate and gift tax treaty with the United States. The United
States currently has estate and/or gift tax treaties with the follow-
ing jurisdictions.
Australia Germany Netherlands
Austria Greece Norway
Denmark Ireland South Africa
Finland Italy Switzerland
France Japan United Kingdom
Gift tax. US citizens and resident aliens are subject to gift tax on
transfers of all property, tangible and intangible, regardless of the
location of the property. Tax is imposed on the fair market value
of property on the date of the gift, at graduated rates determined
by the individuals cumulative lifetime transfers.
Each year, a donor is entitled to exclude from taxable income gifts
of present interests valued at up to USD14,000 (for 2016) for
each recipient. A husband and wife may elect to treat gifts made
by one spouse as being made one-half by each spouse. This gift-
splitting election on joint gifts increases the annual exclusion to
USD28,000 (for 2016) for each recipient. Gifts in excess of the
annual exclusion are subject to taxes ranging from 18% to 40%.
However, a credit may be used to offset this liability.
A US citizen or resident is exempt from gift tax on annual trans-
fers (other than gifts of future interests in property) of up to
USD148,000 (for 2016) to a non-US citizen spouse.
Foreign nationals who are not domiciled in the United States must
generally pay gift tax on transfers of real property and tangible
personal property located in the United States. Intangible property,
including stocks and bonds, is generally exempt. The gift tax rates
for nonresidents are the same as those for citizens and residents.
These nonresidents are allowed to give up to USD14,000 (for
2016) annually to each recipient with no gift tax consequences,
but they may not split gifts with their spouses.
US citizens or resident aliens (as defined for income tax pur-
poses) are required to report gifts or bequests from foreign sources
in excess of USD15,671 (for 2016), in aggregate, but they are
generally not subject to tax. However, the IRS has not required
gifts from foreign individuals or foreign estates to be reported
unless the aggregate gifts exceed USD100,000. Substantial penal-
ties may be imposed for failure to report such gifts or bequests.
Estate tax. The estate of a US citizen or resident includes all
property, tangible and intangible, regardless of location.
Property transferred at death from a US citizen to a non-US citi-
zen spouse is generally not excluded from the decedents gross
estate, unless the property is placed in a qualified domestic trust
U N I T E D S TAT E S 1483
or the surviving spouse becomes a US citizen before the estate
tax return is due. To be considered a qualified domestic trust, a
trust must satisfy the following conditions:
At least one trustee of the trust must be a US citizen or a
domestic corporation, and no distribution from the trust may be
made without a trustees approval.
The trust must meet the requirements prescribed by Treasury
Department regulations.
The executor must make an irrevocable election to be treated as
a qualified domestic trust on the estate tax return.
Estate tax is levied on the property in the trust if any of the fol-
lowing events occurs:
The trust ceases at any time to meet the above requirements.
The corpus is distributed prior to the surviving spouses death,
except in cases of hardship.
The surviving spouse dies.
For US tax purposes, the estate of a nonresident includes only
property deemed to be located in the United States. This gener-
ally includes tangible, intangible and real property located within
the United States at the time of death. For this purpose, shares of
US domestic corporations, US property owned through certain
trusts and certain debt obligations of US residents are considered
to be property located in the United States. In addition, in some
instances, US property held by a partnership or limited liability
company may be considered to be property located in the United
States, but the law in this area is unclear. The estate tax rates are
the same as those for citizens and residents. An estate tax return
must be filed if the value of a nonresident aliens gross estate
exceeds USD60,000.
Expatriation tax. Before 17 June 2008, the United States did not
have an exit tax. However, former US citizens and former long-
term permanent residents were subject to reporting requirements
and potentially to US income tax under a complex set of rules
generally in effect for 10 years following expatriation.
Effective from 17 June 2008, certain individuals known as cov-
ered expatriates are immediately taxed on the net unrealized
gain in their property exceeding USD600,000 (indexed for infla-
tion; USD693,000 for 2016) as if they sold the property for fair
market value the day before expatriating or terminating their US
residency. In general, covered expatriates are US citizens, or
long-term residents (green card holders [see Section G] for any
part of 8 tax years during the preceding 15 years) who either have
a five-year average income tax liability exceeding USD124,000
(indexed for inflation; USD161,000 for 2016) or a net worth of
USD2 million or more, or who have not complied with their US
tax filing obligations for the preceding five years. This treatment
applies to most types of property interests held by individuals.
The above rules also affect the taxation of certain deferred com-
pensation items (including foreign and US pension plans,
deferred compensation plans, and equity-based compensation
plans), interests in and distributions from non-grantor trusts and
certain tax-deferred accounts, such as so-called 529 plans,
Coverdell education savings accounts and health-savings
accounts. In many cases, the present value of the interest in the
1484 U N I T E D S TAT E S
deferred compensation items and other tax-deferred accounts is
subject to immediate taxation.
At the election of the taxpayer, subject to approval of the IRS,
payment of the exit tax may be deferred if adequate security is
provided. Such deferral is irrevocable, carries an interest charge
and requires the taxpayer to waive any treaty rights with respect
to the taxation of the property.
US citizens or residents receiving gifts or bequests of more than
USD10,000 (indexed for inflation; USD14,000 for 2016) from
covered expatriates are taxed at the highest gift or estate tax rate
currently in effect (40% in 2016). Under the general US rules of
gift taxation, tax is assessed on the donor. However, the rule
described above imposes tax on the US citizens or residents
receiving the gifts. This rule does not have a time limit. The tax on
gifts or bequests from a covered expatriate to a US citizen or
resident may be assessed at any time such a gift or bequest is
received after the expatriation of the covered expatriate.
G. Immigrant visas
Permanent resident or immigrant visas, which are commonly
referred to as green cards, are issued to those intending to reside
permanently in the United States. Immigrant visa holders may live
and work in the United States with few restrictions. After a period
of physical presence and continuous residence of either three or
five years (depending on the basis on which the individual
obtained the green card), immigrant visa holders may, but are not
required to, apply for US citizenship.
Nine preference categories of immigrant visas are available to
foreign nationals. Four categories are based on family relation-
ships, and five are based on US employment (see details below).
Immigrant visas may also be obtained in accordance with the
diversity immigration visa program (visa lottery). Under this
program, 50,000 diversity visas are available annually to nation-
als of many, but not all, foreign countries. Such individuals may
qualify for diversity visas if they have completed at least a high
school education or its equivalent, or if they have worked at least
two years in occupations that require two or more years of train-
ing or experience. Each diversity visa applicant may file only one
application per year; multiple applications void all previous
applications. Foreign nationals are chosen at random and are
1498 U N I T E D S TAT E S
eligible to receive diversity visas only in the fiscal year in which
they are selected. In most cases, persons qualify on the basis of the
country in which the applicant was born. However, a person may
be able to qualify in two other ways. Under the first alternative,
if a person was born in a country whose natives are ineligible but
his or her spouse was born in a country whose natives are eligi-
ble, such person can claim the spouses country of birth, provided
both the applicant and spouse are issued visas and enter the
United States simultaneously. Under the second alternative, if a
person was born in a country whose natives are ineligible, but
neither of his or her parents was born there or resided there at the
time of his or her birth, such person may claim nativity in one of
the parents country of birth, provided the natives of such country
qualify to apply for the program.
Potential applicants should check the availability of diversity
visas with respect to their nationality before applying. For addi-
tional information, see https://travel.state.gov/content/visas/en/
immigrate/diversity-visa/entry.html. Currently, natives of the
following jurisdictions are not eligible to apply under the visa
lottery.
Bangladesh El Salvador Peru
Brazil Haiti Philippines
Canada India United Kingdom
China (mainland- Jamaica (except Northern
born) Korea (South) Ireland) and its
Colombia Mexico dependent
Dominican Nigeria territories
Republic Pakistan Vietnam
Ecuador
Persons born in the Hong Kong Special Administrative Region
(SAR), Macau SAR and Taiwan are eligible. Please consult with
the US Department of State for a current list and lottery instruc-
tions.
Categories of employment-based immigrant visas. The five cate-
gories of immigrant visas described below may allow foreign
nationals to immigrate to the United States on an employment-
related basis.
First preferencepriority workers. Foreign nationals who fall into
one of the following categories are classified as priority workers;
no labor certification (see Steps for obtaining employment-based
immigrant visas) is required for these workers:
Foreign nationals with extraordinary ability in the sciences,
arts, education, business or athletics who satisfy the following
conditions:
They have received sustained national or international
acclaim.
Their achievements are recognized through extensive docu-
mentation.
They intend to work in their area of ability.
Their contribution would substantially benefit the United
States in the future.
No offer of employment is required.
U N I T E D S TAT E S 1499
Professors and researchers who have received international
recognition as outstanding in a specific field who satisfy the
following conditions:
They have at least three years experience in teaching or
research in their field.
They have been offered tenure or tenure-track teaching or
research positions.
Multinational executives and managers who have been employ-
ed in executive or managerial capacities with their sponsoring
employers abroad for at least one year in the three years preceding
application, and who intend to continue to work for those
employers, subsidiaries or affiliates.
Second preferenceprofessionals holding advanced degrees and
aliens of exceptional ability. Foreign nationals holding advanced
degrees (or the equivalent) and aliens of exceptional ability may
be issued immigrant visas. Labor certifications are required for
these individuals. Individuals who fulfill the following certifica-
tions may qualify:
They have earned an advanced degree: masters degree or bach-
elors degree plus five years progressively more responsible
experience in the field.
They have exceptional ability in the sciences, arts or business.
Foreign nationals may also petition for a National Interest Waiver
(NIW) through the second preference category, in which they
request a waiver of the labor certification requirement. To quali-
fy, an individual must demonstrate exceptional ability and that
his or her permanent employment in the United States would
greatly benefit the national interest. The foreign national must
meet specified criteria demonstrating experience and excellence
in his or her field and the anticipated contribution to the United
States.
Third preferenceskilled workers, professionals holding basic
degrees and other workers. Individuals in certain categories may
be issued immigrant visas on job-related bases. Labor certifica-
tions are required for these individuals. The following are the
categories:
Skilled workers, not temporary or seasonal, with a minimum of
two years training or experience
Professionals with baccalaureate degrees
Other workers, including unskilled laborers, who are neither
temporary nor seasonal
Fourth preferencespecial immigrants. Foreign nationals classi-
fied as special immigrants (including religious workers, certain
medical doctors who have continuously practiced medicine in the
United States since 1978 and long-time US government workers
abroad), may be issued immigrant visas on job-related bases.
These individuals do not require labor certifications.
Fifth preferenceimmigrant investors. Foreign nationals investing
at least USD1 million in a US commercial enterprise that preserves
or provides full-time employment for at least 10 US workers may
be issued immigrant visas. Investment of as little as USD500,000
in targeted employment areas may qualify an investor for this sta-
tus. Although no offer of employment or labor certification is
1500 U N I T E D S TAT E S
required, strictly passive investments do not qualify. Approximately
10,000 visas are allocated to this category each year. The
immigrant visa quota mechanisms include protections to ensure
that immigrants from all countries have an opportunity to utilize
the category. Based on high demand from Mainland Chinese inves-
tors, at the time of writing, the EB-5 immigrant visa category has
retrogressed to 1 February 2014. As a result, the US immigration
authorities are not adjudicating filings made after that date.
Steps for obtaining employment-based immigrant visas. To obtain
permanent residence under an employment-based immigrant visa
is a two or three-step process. The following are the steps:
A labor certification application (for second and third prefer-
ence categories only)
An immigrant visa petition
An application for permanent residence status
Labor certification. Obtaining a labor certification approval is very
complex, and it is highly advisable to seek legal counsel.
For certain employment-based immigrant visa categories, labor
certification is the first step in the process of immigrating to the
United States. The employer submits an application to the
Department of Labor (DOL) to certify that an adequate test of the
labor market for qualified and available US workers has been
undertaken and that the immigrants employment will not
adversely affect wages or working conditions in the United
States. Labor certifications are issued in accordance with regula-
tions for the permanent employment of aliens in the United
States under the Program Electronic Review Management
(PERM) process.
To obtain labor certification, an employer must make good faith
efforts to recruit US workers for the position by following detailed
and specified recruitment procedures.
A labor certification is not issued if the labor market test results
in a US worker applicant who is qualified and available for the
position, even if the foreign national is more qualified than the
US worker applicant.
The employer must also offer a salary that is equal to or greater
than the prevailing wage paid to workers with comparable job
duties in the region that the position is being offered.
Schedule A: Precertified occupations. For certain positions requir-
ing labor certification, the labor market test is not required. The
DOL has established certain precertified positions and acknowl-
edges that hiring foreign nationals for these jobs does not adversely
affect US workers or wages. These jobs, referred to as Schedule A
positions, currently include the following two major groups of
occupations:
Group 1: Physical therapists and professional nurses
Group 2: Aliens of exceptional ability in the performing arts,
sciences and arts, including college and university teachers,
who are outstanding in their fields
U N I T E D S TAT E S 1501
Schedule B: Jobs with a surplus of US workers. In addition to the
list of precertified occupations, the DOL publishes a list of jobs
for which it has found that sufficient qualified US workers are
available and that hiring foreign nationals would adversely affect
working conditions. These jobs, or Schedule B positions, usually
require little education or experience and pay low wages. They
include hotel and motel cleaners, clerks and typists, short-order
cooks, taxicab drivers, household domestic workers and nurses
aides.
In many cases, labor certification may not be obtained for a
Schedule B position. However, it is possible to submit the infor-
mation normally required for labor certification and to request a
waiver of the Schedule B disqualification.
Multinational executives and managers: Exempt labor certification.
Foreign nationals applying for lawful permanent resident status
under the employment-based, first preference, multinational man-
ager or executive category do not require a labor certification.
Immigrant visa petition. After the labor certification petition is
approved (if required), the second step to obtain an immigrant
visa, and ultimately permanent residence, is filing an immigrant
visa petition. The prospective employer must petition the USCIS
to classify the foreign national under a recognized employment-
based preference classification. The employer must prove that the
foreign national is qualified for the position and that the employ-
er has the ability to pay the offered wage.
Application for permanent residence status. A foreign national
wishing to obtain permanent residence status must apply either
for an immigrant visa or for adjustment of status as a lawful
permanent resident within a preference classification.
Applications for adjustment of status to lawful permanent resi-
dence may be filed after the immigrant visa petition is approved
or, under certain circumstances, may be filed concurrently with
the immigrant visa petition. The principal foreign national and
his or her spouse and unmarried children younger than 21 years
of age must each file separate applications.
Alternatively, immigrant visas are issued overseas at US embas-
sies and consulates in the immigrants home countries. Applicants
not physically present in the United States must ordinarily remain
outside the country during the immigrant visa processing peri-
ods. In most cases, foreign nationals who have entered with visas
may apply for permanent residence in the United States by filing
an application for adjustment of status (see Adjustment of status
in the United States).
Processing overseas at a US consulate. The USCIS immigrant visa
petition approval is forwarded to the National Visa Center, which
collects biographic information, as well as certificates of birth,
marriage and divorce. Foreign nationals must also submit police
certificates from all places where they have resided for longer than
six months since the age of 16. After the National Visa Center has
collected the required information and documents, the application
is transmitted to the US consulate handling immigrant visas in the
1502 U N I T E D S TAT E S
country where the foreign national resides. The consulate then
provides instructions for a medical examination and in-person
interview.
Adjustment of status in the United States. Foreign nationals who
have maintained lawful non-immigrant status in the United States
may be allowed to apply for permanent residence through an
adjustment of status application. If a foreign national violates his
or her non-immigrant status, he or she may still be eligible to file
for an adjustment of status in the United States under certain
circumstances; however, that determination is made on an indi-
vidual basis.
After filing an adjustment of status application, an applicant
ordinarily remains in the United States. In many cases, departing
without prior USCIS permission cancels the application.
Consequently, the applicant should apply to the USCIS for an
advance parole. Advance parole grants permission to re-enter the
United States and prevents the USCIS from concluding that an
adjustment of status application has been abandoned. An excep-
tion also exists for travel in H or L status under certain circum-
stances. Advance parole applications should be filed well in
advance of the intended travel date.
Applicants for adjustment of status (including family members)
may apply for and obtain an Employment Authorization Document
permitting them to be employed by any employer pending the
finalization of the adjustment application.
Categories of family-based immigrant visas. Under existing rules,
many but not all family relationships may qualify an individual for
lawful permanent residence status. Qualifying relationships allow
the sponsorship of family members, including immediate relatives,
such as the following:
Spouses of US citizens
Minor unmarried children under age 21 of US citizens
Parents of US citizens who are at least age 21
In limited circumstances, spouses of deceased US citizens
In addition, family preference categories allow for the submis-
sion of an immigrant petition on behalf of certain groups.
However, these groups have historically experienced severe back-
logs as a result of annual demand exceeding annual quotas. The
following are the groups:
Unmarried sons or daughters of US citizens
Spouses or minor children of foreign nationals lawfully admit-
ted for permanent residence
Unmarried sons or daughters of foreign nationals lawfully
admitted for permanent residence
Married sons or daughters of US citizens
Brothers or sisters of US citizens who are at least age 21
Loss of permanent residence status. Foreign nationals may lose
their US permanent residence status in several ways. The most
common means is through abandonment, either by intent or by an
act deemed to indicate intent to abandon residence, such as con-
tinuous absence from the United States over a long period of time
or failure to file US federal income tax returns as a resident of
U N I T E D S TAT E S 1503
the United States. Permanent residents may also lose their status
if they commit a prohibited act, including conviction for certain
crimes. Permanent residence may also be rescinded if an applica-
tion is found to have been fraudulent.
Absence of less than six months from the United States by a perma-
nent resident usually does not constitute abandonment if the foreign
national returns to an unrelinquished US domicile. However, an
absence of one year or longer generally does constitute abandon-
ment, unless the individual has a re-entry permit. Consequently,
permanent residents who remain outside the United States for lon-
ger than six months should consider obtaining re-entry permits. A
re-entry permit may allow an otherwise eligible individual to re-
enter the United States after up to two years of continuous absence.
Obtaining a re-entry permit requires a statement that the foreign
national intends to leave the United States only temporarily. The
application for a re-entry permit may be denied if the permanent
resident has been living overseas with only occasional visits to the
United States, if he or she expresses no intent to return to a US
residence within a fixed period of time, or if he or she has no ties
to the United states, such as real or personal US property.