Hi,

I am married and we both entered US in 2007 on F1 visa, as we are not aware of the tax filing system here, we approached h & r block. As we both we working on F1 visa (CPT), they filed our taxes jointly as residents. (1040A form).

Recently I came to know that being on F1 status we should not file as Residents, and now tax agents say that it is not possible to file an amendment to change the form to 1040NR.

Please advise me what to do ?

Thanks,
R.

Under normal U.S. tax rules, if spouses file a joint tax return they cannot later amend the tax return to file as married filing separately (it is ok to file separately first and then to amend to file jointly, but not the other way around).

In your case, however, you and your husband were not residents during 2007. Therefore, you did not qualify to file a joint tax return. Nonresident aliens are not allowed to file joint tax returns. You each should have filed Form 1040NR (if you both had U.S. source income).

Your tax advisor is confusing the rule discussed in the first paragraph with the fact that you did not qualify to file a joint tax return in the first place. You should file an amended tax return.

If you have not already amended your return, email me at taxexpert@<hidden> and I can help you file the amendment for a fee.