Hi, Dear Atlanta Tax Expert,

I entered US as a student on Sept. 2001. I had income from Jan to May 31, 2005 as on OPT and income from June. 1 to the end of 2005 as on H1B. My husband is an international student holding F-1 visa but he does not pass the substantial presence criteria. We both come from CHINA.

1. Based on what I read, it seems that I cann't file as a dual-status. Is that right? The reason I am asking that I was trying to claim tax treaty($5000 decution under article20) if I can file as dual-status for that OPT part.

2. My income is about $10,000 more than my husband's income. which do you think will be the best way to file as far as tax savings is concerned, file separately(I: resident, my husband: non-resident to claim the $5000 treaty deduction, and no tax on interest(1099-INT)) or jointly as both residents?

Thank you very much!

1) That is correct; dual-status does not apply.

2) Probably jointly, since you will then have a $10,000 standard deduction and possibly lower tax rates. But I cannot say for sure without income figures.