Participants should not be set up on your payroll as independent contractors, but rather as W-2 employees with appropriate withholdings, as discussed later in the manual.
The participants are only allowed to train with your business under the supervision and guidance of a designated supervisor, therefore, on-the-job training cannot be considered as an independent activity. Furthermore, if your participants are classified as independent contractors, they are not considered employees of the company and are not subject to the same level of supervision and guidance. In liability considerations, independent contractors are responsible for their own work and are not covered by the same liability protections (including, but not limited to worker’s compensation policy coverage) as employees. If participants are classified as independent contractors and they cause damage or injury while on the job, your business may be held liable for any resulting damages.
It may also lead to tax implications. Employers who misclassify employees as independent contractors can face significant tax liabilities, including penalties for failure to pay employment taxes. The IRS uses a series of tests to determine whether an individual is an employee or an independent contractor, and misclassification can result in costly audits and penalties.
Tax Residency Status
Before beginning to complete new hire documents it is important to verify your participant’s residency status for tax purposes to correctly determine the tax exemption status.
Although the tax residency rules are based on the immigration laws concerning immigrant and nonimmigrant aliens, the tax rules define residency for tax purposes in a way that is very different from U.S. immigration law. For tax purposes, there are two types of aliens: resident and nonresident aliens. Resident aliens are taxed in the same manner as U.S. citizens on their worldwide income, and nonresident aliens (with certain narrowly defined exceptions) are taxed only on income which is derived from sources within the United States and/or income that is effectively connected with a U.S. trade or business.
The participants are typically referred to as ‘nonresident aliens’ under the IRS regulations for tax purposes. If a J1 visa holder has been in the U.S. for longer than two of the last six calendar years, the Substantial Presence Test will determine their correct tax residency. Please visit the IRS website for more details on this topic: Taxation of Alien Individuals by Immigration Status – J-1.
There are tax specialists, like Sprintax, that specialize in nonresident tax filing process can provide further guidance on this subject, as it pertains to a specific case.
Income Tax Treaty Exemption
The following is intended to provide general guidelines only. Given the complexity of tax codes affecting J-1 visa holders, you may wish to consult with a competent tax professional knowledgeable about international tax treaties.
A tax treaty is an agreement between two countries that determines how taxes will be levied on individuals or businesses that have connections to both countries. There are provisions under the Internal Revenue Code and applicable income tax treaties that may exempt a J-1 visa nonresident’s compensation for personal services income from U.S. taxation.
The United States has bilateral income tax treaties with over 65 countries and many treaties provide specific benefits for J-1 aliens under the Students/Trainees article and/or the Teachers/Researchers article of the applicable treaty. Each treaty provision is unique and must be examined to determine the applicable treaty benefits for participants. You can find a list of treaties on the IRS website. If a participant is a resident of a country that has a tax treaty with the US, they may be taxed at a reduced rate or exempt from U.S. tax on income from specific sources earned within the US. The reduced rates and exemptions vary depending on the country and types of income.
It is the responsibility of the participants to notify you of the tax treaty exemption by submitting IRS Form 8233 for the respective tax year along with an exemption election statement where they “elect” to receive the tax exemption based on a specified tax treaty between the United States and their home country. It is also your company’s responsibility to verify that the treaty covers the participants.
You must mail completed Form 8233 along with attachments to the IRS within 5 days to the address provided on per instruction for Form 8233. If a participant is claiming a tax treaty exception, Form 8233 must be filed with your W-4 at the beginning of every tax year.
IRS Publication 901 summarizes the tax treaties currently in effect. Exchange visitors from Canada, Mexico, American Samoa, Japan, South Korea, India, China, and others often find tax advantages in the treaties.
For more information, please refer to:
CETUSA recommends seeking competent tax advice before proceeding.
For more information on taxes for non-residents and other foreign nationals living and working in the U.S., the IRS provides an annual Publication 519 U.S. Tax Guide for Aliens. This comprehensive publication addresses the most common tax questions among visitors.
FICA and FUTA Withholdings
Under IRS Code Section 31.21. (B)(19), all nonresident aliens on J-1 visas are exempt from paying FICA (Social Security) and FUTA (federal unemployment taxes) taxes during their first two calendar years in the U.S. or parts thereof. They cannot collect these benefits, so they do not have to pay for them.
To fix the mistake of wrongfully withholding FICA and FUTA taxes from a J-1 nonresident alien’s wages, the employer should correct the amount, file Form 941-X, provide a corrected Form W-2, and refund the withheld taxes to the employee. The participants can also claim a refund for wrongfully withholding FICA and FUTA taxes when filing their tax return.
However, it is possible that the state or city government may impose an income tax on J-1 visa holders and will have a different approach to determining residency status. Each state has a complex and differing definition of what constitutes a resident. Most states will look at a list of residency factors that have been long established like domicile (permanent residency), or the day counting rule. Owning a home, family location, and financial interests are other factors which help some of the states determine residency.
Participants may be considered residents of the state where they currently live. Check with your state and local tax authorities or consult a tax professional on the appropriate withholdings.
If there is a state and/or city income tax where participants reside, you will generally withhold these taxes from the participant’s paycheck.