Hi,

I am on H1-B and my wife is on H4. My son is a US citizen who was born in 2004. My wife and kid were out of US for 11 and a half months visiting my country on a vacation. I have the following questions:
1. Can I still file with "Married Filling Jointly" status?
2. Can I still claim my child as a dependant to get the $1000 tax credit?

Thanks,
Swapnil.

AtlantaTaxExpert

Swapnil:

If you are on a H-1B and your wife is on a H4 visa, you may file as a resident alien, in which case you can file Married Filing Jointly and you can claim your child as a dependent.

Unless your income is exceptionally high, you also qualify for the Child Tax Credit for your son.

d_swapnil

Hi AtlantaTaxExpert,

Thanks for the quick response. I was only worried because I read on IRs site about the new tax law that, for a child to qualify as a dependant he must have stayed with you for more than 6 months. And since my wife and son were out of US for 11 and a half months in 2005, I was not sure about claiming my son as a dependant. Do you think I can still claim him as a dependant?

Thanks,
Swapnil.

AtlantaTaxExpert

Swapnil:

The six-month rule applies normally only if someone other than his parents attempt to claim the child as a dependent.

With whom did he stay during this 11.5 month period, and is that person attempting to claim him on their tax return?

d_swapnil

He was staying with my wife all the time. And no one else is going to claim him as a dependant.

Swapnil.

AtlantaTaxExpert

Swapnil:

Then do not worry about it. Go ahead and claim him.

d_swapnil

Thanks ATE!

I really appreciate your prompt responses.

Swapnil.

AtlantaTaxExpert

Glad to help!