I am from China and I held B1 to enter US in Jan.2001 and changed the status B1 to F1 on 12/2６/2001. I returned to China and returned to USA　ｉｎ　２００５　ｗｉｔｈ　ａ　ｎｅｗ　Ｆ１　ｖｉｓａ　．
I had no income in 2001 and 2002 and I failed to fill in the tax return in 2001 and 2002 since I didn't know I needed to do so
I already filled the tax return as Non-resident for three years ( from 2003 through 2005). My wife and son came to USA to stay with me with F2 visa since last April and I am wondering whether I can be qualified as resident alien (joint family) for the tax purpose?

I'll appreciate for your help.

ｓｕｎ

AtlantaTaxExpert

Sun:

You had NO LEGAL REQUIREMENT to file a tax return in 2001 or 2002 if you have no income. You should have filed Form 8843, however. Go ahead and file these forms by themselves. You can get 2001 and 2002 versions of Form 8843 from 1040.com Website.

You are a resident alien for tax purposes for 2006. The exempt status that is granted to F-1 visa holders expired for you on 31 December 2005.

Youe wife can file jointly with you as a non-resident spouse of a resident alien.

cli

Thanks to AtlantaTaxExpert
However, I still have questions about it.
Can IRS allow me to make up the Form-8843s for 2001 and 2002? Is there any penalties?
The other thing, I never attacted Form-8843 to the 1040NR for 3 years (from 2003 thr 2005) and I got the tax return for three years. Is it also a problem?

If I fill in the tax return as resident alien joint with my family (wife and son), can I be qualified for the education credits or any child credits?

Sun

AtlantaTaxExpert

Sun:

There are no penalties and, to my knowledge, no real adverse consequences to NOT filing the Form 8843. However, the law says to file these forms annually, so filing late is better than NOT filing at all.

Yes, you DO qualify to claim the Education Credits or deduction for 2006.

cli

Thanks for the reply.

Here is situation: I can fill Form 1040 as resident alien and my wife and son nonresidents who just came to US to stay with me last year. I have very low income( annual income around $9000 ). If I can file 1040 as a single status or head of household, I think I will be able to get some earned income credit(EIC), However, if I should fill 1040 form as married jointly, I won't be able to get EIC since my wife and son won't be able to get SSNs.

Another thing We are expecting a child born in USA this May. Next year when we file the tax return(the annual income will be arround $10000), if I should file as married jointly, I'll not be able to get EIC for the qualifying child either.

Which filling status(single, household or married jointly) can I fill in ? Is it a possible way to get the EIC ?

Thanks again.

AtlantaTaxExpert

You do NOT qualify for EIC because neither your wife nor son were legal residents in 2006.

You MUST file either Married Filing Jointly or Married Filing Separately. If you file HoH to get the EIC, you are committing tax fraud.

In 2007, you WILL qualify for the EC for your newborn, who will be a U.S. citizen.

cli

Thanks a lot.
I knew I didn't qualify for EIC.
But for the new born child in 2006, how can I qualify for the EIC for my newborn ? If I filed the married jointly, it requires my wife should have a SSN as well in order to get EIC for my newborn. I thought there is no way to get EIC for my newborn child in 2007. Am I right ?

AtlantaTaxExpert

Your newborn will be a U.S. citizen and will get a SSN as a citizen. That fact makes you eligible for the EIC.