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Can F-1 visa holder without earning be a dependent for H-1b visa holder husband?

Asked Feb 27, 2007, 12:00 AM — 10 Answers
I know that the question is kind of strange, but here is my situation. I am having H1b visa at present (moved from OPT to H1b last September). My wife is a student with F1 student visa (in Illinois Urbana Champaign). But she has completed her residential requirement and since last year has been staying off campus with me (in Seattle), working on her thesis. She did not have any income last year. Her payroll office says that no W2 or 1042S will be issued for her since she did not have any income. In this situation while filing my tax, can I add her as my dependent? If so, how? Also since she will not get any W2, will that affect a potential Green card application that we are planning in the near future?

I was going through the different posts and found out someone with kind of similar situation. It is suggested that if the spouse is in f1 status with no income, we can file jointly as resident aliens. I have a question regarding that,. My wife will not get W2 or any tax return document of that sort. In that case don't I need to staple both of our W2 tabs with the return? Since she will not get it will only my w2 work?

BTW, I have been in USA since 1999. 99-2005 F1, 2005 Sep-2006 Sep OPT, and since 2006 Sep, H1B. My wife is F1 since 2000.

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10 Answers
AtlantaTaxExpert's Avatar
AtlantaTaxExpert Posts: 19,886, Reputation: 3728
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#2

Feb 27, 2007, 11:02 AM


You CAN claim her as a dependent if you are from India.

However, it is probably better to file jointly and choose to be treated as resident aliens for ALL of 2006. That gets you the double standard deduction of $10,300 plus BOTH personal exemptions of $3,300 each, for a total deduction of $16,900.

Since you BOTH have used up your five-year F-1 exemption, there is no need to wait. You can even file online if your wife has an ITIN or SSN.

If you need my professional tax help, contact me at david.kempe@visataxes.com.
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dipayanrudra's Avatar
dipayanrudra Posts: 2, Reputation: 1
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#3

Feb 27, 2007, 12:18 PM
Thanks for the reply. But I thought that to file jointly both of us have to provide W2 or equivalent. Is it possible that we file jointly, and I just staple my W2? Since my wife will not get one this year.
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AtlantaTaxExpert's Avatar
AtlantaTaxExpert Posts: 19,886, Reputation: 3728
Senior Tax Expert
  
#4

Feb 27, 2007, 09:59 PM


You can file jointly even if only one spouse has any income (right out of the IRS Publication 17)!
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lko123's Avatar
lko123 Posts: 3, Reputation: 1
New Member
  
#5

Jan 26, 2009, 07:38 PM
Hello,

I have a similar question. In my case I am H1 B holder(since 2007) and I pay for my brothers tuition who is on F1 visa( since 2004). Can he be my dependent. If it maters we are from India.

Thanks for any help.
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MukatA's Avatar
MukatA Posts: 7,106, Reputation: 963
Tax Expert
  
#6

Jan 27, 2009, 01:29 AM


No. On F1 your brother is exempt from residency and a dependent must be resident of the U.S.
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lko123's Avatar
lko123 Posts: 3, Reputation: 1
New Member
  
#7

Jan 27, 2009, 09:18 AM
Thanks for replying. He is on F1 since Jan 2004 so he completes 5 years in Jan 2009. Does that mean he is a resident alien and I can file him as dependent or do I need to wait for next year.
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MukatA's Avatar
MukatA Posts: 7,106, Reputation: 963
Tax Expert
  
#8

Jan 27, 2009, 09:48 AM
No.
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anoop207's Avatar
anoop207 Posts: 1, Reputation: 1
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#9

Feb 13, 2009, 03:55 PM
Similar situation :
I am on OPT and working for an IT firm,
I married on 7th dec 2008 in india and my wife came USA(of F1 visa) with me on 19th dec 2008.
Now it is time to file return , should we file jointly ( after getting Tax ID for my wife) ?
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MukatA's Avatar
MukatA Posts: 7,106, Reputation: 963
Tax Expert
  
#10

Feb 13, 2009, 06:27 PM
Anoop207:
On F1/OPT you are exempt from residency for 5-years. You must file non-resident tax return Form 1040NR or 1040NR-EZ and Form 8843. You can not file as resident.
Read: Your U.S. Tax Return: U.S. Tax Filing Requirements for Non-Residents
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