Thanks, I thought this was the case, but with this sort of stuff I'm always afraid of doing the wrong thing. Before I moved my taxes were very simple, plugging in numbers from a form and that's it. This is my first time paying tax from overseas, and I didn't even know about the penalty with respect to healthcare stuff until this morning, so wanted to be sure I wasn't missing anything. Thank you very much.

How do you know the op is a bonafide resident? From what I read of the tax law, it wasn't clear how to fully establish this.

I am curious about this as well

Based on what are you claiming bona-fide rules apply? He's neither a citizen nor a permanent resident in the host country and his stay there is conditioned and limited. I don't think he can claim being bona-fide resident.

@jmort253 because she is living abroad with no definite plans to return to live in the United States.

@littleadv because she is living abroad with no definite plans to return to live in the United States.

I disagree. Being in temporary immigration status by definition assumes plans to return to the United States.

@littleadv how many "temporary" H-1B workers come to the US with no intention of returning to their home countries?

@phoog what does that have to do with anything? h1b is explicitly a dual-intent visa. Can you say the same about the immigration status of the OP?

Maybe the scope of my immigration status is relative to the tax year? My visa extends years past the end of this year, so perhaps I am a 'bona fide foreign resident' if I know for sure that I will be outside the US past the end of this year and have been since the beginning of it. Also, my previous visa expired past the time that my current one began (10 day overlap) giving me 'clearance' to be outside the US for the entire year. But still both were/are temporary...

Another IRS web page claims that the IRS will judge whether you're a "bona fide" resident individually for each case.

@lafemmecosmique no, bona fide isn't relative to the tax year. From Publication 54: "If you go to a foreign country to work on a particular job for a specified period of time, you ordinarily will not be regarded as a bona fide resident of that country even though you work there for 1 tax year or longer." So it's not relative to the tax year; either you were or you weren't.

@littleadv do you have any source showing that immigration status in a foreign country can automatically disqualify someone as a bona fide resident?

@littleadv ""what does that hav to do with anything?" My point was that someone's being on a limited-term residence permit does not imply anything about the person's intent to return to the US. The person may be forced to return to the US when the permit expires, but that doesn't mean she intends to do so. Choosing a dual-intent US visa was an unfortunate move on my part.

@phoog do you have any source to the contrary? Limited admittance for a certain period by definition requires definitive plans to go back. That's a precondition for her admittance. Thus the burden of prooof to the contrary is on the OP. Is she in a process for permanent residency? No. Does her status even allow such a process, similarly to h1b? I don't know. Do you? Do enlighten us.

@littleadv the French visa application does not require a "definite plan to go back." No description of the bona fide residence test mentions foreign immigration status. Consider Cobb v. Commissioner in which one part of the test is "establishment of his home temporarily in the foreign country for an indefinite period"; Cobb was found to be a bona fide resident despite having a 48 month visa. OP's visa is renewable and therefore indefinite.

@littleadv from pub 54, emphasis added: "But if you go to Scotland to work for an indefinite or extended period and you set up permanent quarters there for yourself and your family, you probably have established a bona fide residence in a foreign country, even though you intend to return eventually to the United States." So the period of residence need not even be indefinite; it can just be extended, which her already-five-year-long foreign residence has already undeniably been.

@phoog so you're getting into the "facts and circumstances" territory, not "You are a bona fide resident" as you claimed. You think that she can reasonably make such claim. But that is not a fact, as you've presented. I agree that there's a reasonable claim there, but I disagree with your claim that this is an undeniable fact. It most certainly is not.

@littleadv all the facts and circumstances I've cited are in the context of the bona fide residence test. How is that "not 'you're a bona fide resident'"? You claim that her immigration status categorically disqualifies her from bona fide residence, and that is also most certainly not true.

@phoog I think you've got a thing or two to learn about how to read the tax law. It is (like any other law) almost never definitive when it comes to benefits. So claiming "you're a bona fide resident" is, essentially, lying, because you don't know. You think that she probably is. And that is what you should have written in your answer. I suggest you look into what "facts and circumstances" mean, since you clearly don't know.

@littleadv this sounds like so much sour grapes.

I explained to you your mistake, what you do with that is really up to you. It's not the first time I had to correct your mistakes on this forum, and is most likely not the last.

My mistake? "Being in temporary immigration status by definition assumes plans to return to the United States"? I think we've established that you don't know what you're talking about.

@phoog Last time I checked, my statement was correct. If you have citations from the French immigration law on the matter - i can read French. Otherwise - all you need to do is to add "I think that..." before your fist sentence to earn the removal of my downvote. You don't have to, though. I know admitting you're wrong is hard for you, from the previous times. I'm pretty sure I'll see some downvotes coming my way from you, as you did before. But the fact of the matter is, and I'll emphasize: you are wrong, and you don't even understand why.

@littleadv I can read French, too, and I've provided sources indicating why French immigration law is not particularly important in this matter. You, by contrast, have not offered anything to suggest that your statements are anything other than opinion. You say I am wrong, yet your position has changed from "I disagree" to "I agree that there's a reasonable claim there." I am happy to admit that I am wrong when I am faced with a convincing argument. I have yet to see one here.

@phoog My position hasn't changed. You stated a fact and I challenged you to prove it. You failed. If you want to correct your answer to clarify that it is not a given fact that the OP is a bona fide foreign resident - the disagreement will be resolved. You've already admitted that I'm right, the only thing that prevents you from correcting the answer is your own pride.

The key word when I look at this folks is that it says "probably". Even the quote by @phoog says "probably" There is nothing in the tax law that clearly spelled out how to 100% tell if you're a bona-fide resident. "Probably" just isn't good enough for me to rely on, which is why I'd strongly suggest the op pass the physical presence test. It's spelled out a lot more clearly and definitively than bona-fide residence status. The bona-fide residence test even refers to its own name, creating a bit of a circular reference.

Here's the information from the IRS on how to determine if you pass the bona-fide residence test: irs.gov/Individuals/International-Taxpayers/…

@littleadv you did not challenge me to prove anything. You said that you do not agree that OP is a bona fide foreign resident, and that being in temporary immigration status assumes plans to return to the US, which implies that the OP cannot pass the fide residence test for that reason. I assert that foreign immigration status does not have any automatic effect on the outcome of the BFR test. I have sources to support that.

@littleadv If your primary motive was to challenge the fact that I have no standing to make a factual determination about OP's residence, I already conceded that when I edited my answer.

@littleadv but you did not make that clear in your initial comments, which seem simply to say "OP is not a bona fide resident because of her immigration status."

@littleadv so to me it looks very much like you've changed your position from one challenging the truth of my statement to one challenging the appropriateness of my making that statement. From my point of view it does not lend you very much credibility.

(Asserting that you can read French when you refer to "la femme cosmique" as "he" also does no favors to your credibility.)