Pending Asylum, resident or non resident alien

Technical topics regarding tax preparation.
#1
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I have a client who first arrived to the US in 2019 on a B1/B2 visa (tourist visa). In January 2020, he filed with USCIS for Asylum and received an official receipt on April 2020. Based on his application he received a work permit and social security number.
As of today, his application is still pending.

I'm not very sure if in 2020 he qualifies to count his days under substantial presence test since he is working and has SSN. At the same time his asylum hasn't been approved yet so not sure which status he is on.
Appreciate your expertise on the matter.

Thanks
 

#2
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Thoughts please?
 

#3
Nilodop  
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I have no such experience and these are not your exact facts, but:

Rev. Rul. 61-118

Where Cuban refugees enter the United States under a temporary visitors visa, within a few months request political asylum, and are granted indefinite departure status with the right to work in this country, or are admitted to this country as parolees under section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5), they are classified as alien residents of the United States rather than nonresident aliens for Federal income tax purposes. See Rev. Rul. 57-331, C.B. 1957-2, 11, which relates to Hungarian refugees.


Rev. Rul. 57-331

Where a Hungarian refugee enters the United States under an immigrant visa for permanent residence in this country, or is admitted to this country as a parolee under section 212(d)(5) of the Immigration and Nationality Act, 66 Stat. 188, 8 U.S.C. 1182(d)(5), such refugee is classified as an alien resident of the United States and is subject to Federal income tax under the provisions of section 1 of the Internal Revenue Code of 1954, in the same manner as is a citizen of the United States. Therefore, amounts paid to such a refugee for services performed within the United States, which constitute wages for purposes of the Collection of Income Tax at Source on Wages (chapter 24, subtitle C, Internal Revenue Code of 1954), are subject to income tax withholding under section 3402 of the Code.

Since the Federal Insurance Contributions Act taxes are applicable to all "wages" for "employment," as those terms are defined in the Act (chapter 21, subtitle C, Internal Revenue Code of 1954), wages paid to such a refugee for services in an employment under the act are subject to such taxes. The fact that an employee is a Hungarian refugee is immaterial in determining whether services performed within the United States by such an employee constitute "employment" for purposes of deducting, under section 3102 of the Act, the employee tax imposed by such Act.


FARAMARZ AND MITRA ELGHANIAN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent; FARAMARZ ELGHANIAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
UNITED STATES TAX COURT - MEMORANDUM DECISION
T.C. Memo. 2005-37

Mohammad M. and Monireh Aazami v. Commissioner.
United States Tax Court - Memorandum Decision
T.C. Memo. 1993-436
 

#4
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Thank you. It is close
 


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