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Non-resident alien in the US with EAD (work authorization)

Active Member
Hyo Jung K Member Since: Jul 4, 2018
11 of 16
Hi Xinyi and Valerie,

I’ve triple checked IRS website and their website very clearly states that W8-BEN is equivalent of W9 and non-U.S person CANNOT and shouldn’t file W9. It is just two different categories and upwork should consider taking W8-BEN from non U.S person authorized to work in the U.S.
Active Member
Deepika M Member Since: Aug 30, 2018
12 of 16

Hi Xinyi,


I came across your post because I was searching for the same answers. 

What I could find was USCIS and IRS have different definitions for resident aliens. Since Upwork requires this information to be filled on their Tax Information page, I assume that the definitions as per IRS should be taken into account in this particular situation. If you read the definition of US person + Resident Alien + Substantial Presence  all together from the IRS website things might get more clearer.

As per the IRS website:

The term "United States person" means:

  • A citizen or resident of the United States,
  • A partnership created or organized in the United States or under the law of the United States or of any State, or the District of Columbia,
  • A corporation created or organized in the United States or under the law of the United States or of any State, or the District of Columbia,
  • Any estate or trust other than a foreign estate or foreign trust. (See Internal Revenue Code section 7701(a)(31) for the definition of a foreign estate and a foreign trust.), or
  • Any other person that is not a foreign person.

Additionally they define resident alien as

Resident Alien

A resident alien is an individual that is not a citizen or national of the United States and who meets either the green card test or the substantial presence test for the calendar year.


Substantial Presence test:

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:

  1. 31 days during the current year, and
  2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
    • All the days you were present in the current year, and
    • 1/3 of the days you were present in the first year before the current year, and
    • 1/6 of the days you were present in the second year before the current year.





Active Member
Xinyi F Member Since: May 13, 2018
13 of 16

Hi Deepika,


Sorry I forgot to update this poset - someone from UpWork has reached out to me through a ticket and told me where to change in my settings in order to have access to the right tax form. (If you need the instruction as well feel free to PM me.) I have not done so since I haven't got a contract anyway, but the person from UpWork support team told me that doing that will allow me to fill the right tax form without loss of access to US-only jobs.


And I'm aware of the information you copied there - but I don't think it's up to us users to "assume" which definition UpWork follows. UpWork has a definition which they show you when you choose between "US person" and "non-US person". I'm very clear that I'm a non-residnet alien (because F-1 visa holders are exempt from the substantial presence test for 5 years and this is my 5th year in the US) as per IRS's definition. But choosing "non-US person" on my account will 1. prevent me from accessing all the "US-only" jobs and 2. mean that I'm ignoring UpWork's explicit definition of "US person" and substituting that with IRS's version. I didn't want to ignore instructions from UpWork unless explicitly told by UpWork's support team.

Active Member
Lidya C Member Since: Mar 2, 2019
14 of 16
Hi Xinyi,
Could you please share with me some insights on this issue?
Kind regards,
Active Member
Xinyi F Member Since: May 13, 2018
15 of 16

Hi Lidya,


I'm pasting below parts of the answer I received from UpWork Customer Support through a Request. (Mods - please delete/edit if this is not allowed.) I have not tried the solution suggested by the Support staff yet as I haven't been active on UpWork lately.


"by default, when a user uses a US Address, the system will prompt to enter their W-9 information. If you need to fill out W-8BEN, you need to use your permanent residence address to enable W-8BEN. Once changed, you can fill out W-8BEN. You can access your Settings change to change the address/Country. 


1. If I change my address to my home/permanent address, does that mean I will no longer have access to “US only” jobs?

Thanks for your question. This new feature is designed for clients who have a specific need for a freelancer in their country (reasons vary, but in many cases they need the possibility of on-site coordination, localized knowledge, or have to meet certain compliance rules for their company). However, our location confirmation process allows for periodic travel, so if we’ve been able to confirm you are in the U.S. you’ll still be able to submit proposals for jobs where the client is requesting U.S. freelancers only. It will then be up to you and your client to determine whether your travel schedule affects your ability to meet their job requirements.

2. My tax residency status will change from non-resident to resident on Jan 1st 2019, meaning at that point my appropriate tax document changes from W-8BEN to W-9. Are you suggesting that I should change my country now, and then change it again back to the US when 2019 comes?

Yes you can do that. You can change your address bank to United States when you already have the residency or permanently be staying in the US."


Hope this helps.

Active Member
Lidya C Member Since: Mar 2, 2019
16 of 16
Thank you Xinyi for your prompt response, I really appreciate it!