My husband and I got married last year. He was here on the J-1 visa and left last month. His sponsor will file his taxes, so do I file mine as married filing separately, including his social security number, or as single?

Also, will his sponsor get any information about my taxes?

Sorry if this is very ignorant. I haven't dealt with this situation before.

AtlantaTaxExpert

Your husband's tax lady is WRONG!

Your marital status in no way affects your J-1 visa status, and it only affects your INCOME tax status if you voluntarily decide to be treated as a resident alien for all of 2008.

Hence, since your J-1 visa is probably a trainee visa, you can file separately as a non-resident alien for 2008 (filing Forms 1040NR-EZ and 8843) and probably continue to be exempt from FICA (Social Security and Medicare) taxes for the duration of your J-1 visa.

Further, even if you file jointly with your husband and choose to be treated as a resident alien, you are still exempt from FICA (Social Security and Medicare) tax withholding until your J-1 visa expires, or until the end of the second calendar year of your J-1 tour, whichever comes first. This is covered at the link below:

Nonresident Spouse Treated as a Resident

You may want to consider using another tax professional who is more knowledgeable about international tax rules.

nicery1997

What is she (my husbands tax lady) saying is that once I applied for permament residency I am no longer alien and I cannot get my federal tax back. I have to do my taxes as all Americans. She also said I will have to pay social security (because I didn't pay it working still on J1). She said my J1 status is not valid anymore once I applied for permament residency. Is that true?

AtlantaTaxExpert

As I stated earlier, she is wrong!

She has probably did a superficial reading of IRS Pub 519 and has made some incorrect assumptions.

Your J-1 visa is effective until your permanent residency application was approved with an effective date. When that effective date comes, then (and only then) does your J-1 visa become void and you become liable for the Substantial Presence Test.

Since the effective date seems to be in December 2008, you have not spent enough time in the U.S. to file as a dual-status alien, so you will file as a non-resident alien for 2008.

You can file jointly with your husband and choose to be treated as a resident alien for 2008, but that is your CHOICE, not a requirement under U.S. tax law.

Like I said earlier, you need to get another tax consultant with a broader background in international tax law.

If you wish to use me, emal me at .

nicery1997

Ok let me start from the begining. I came to america on June 2007 and in 2008 I did my taxes and as international student got my return. My program is 18 months long. It is j1 visa/trainee. In 2008 I got all my tax back no problem. So my program is 18 months long from June 2007 till December 2008. I got married in August 2008 and kept working on my j1 visa, because other ways I couldnt work because I was waiting for work permit. In December 2008 I had to quit because my J1 expired and I still didnt get my EAD. I got my EAD in Feb 2009. Now my husbands tax lady says I should have pay social security in 2008 and that I owe now about $2200. I seriously dont know what to do. Is there a certain article or paragraph that I can show her that she is wrong?

AtlantaTaxExpert

I stand by my earlier postings.

Your trainee J-1 status exempts you from FICA (Social Security and Medicare) taxes for calendar years 2007 and 2008 while you worked under the J-1 visa. When you got your EAD in February 2009, that exemption no longer applies, and any money earned in 2009 IS subject to FICA (Social Security and Medicare) taxes.

But you ARE exempt for 2007 and 2008. You can download IRS Pub 519 and print out pages 50-52 to show the tax lady. Or you can have her call the IRS International Tax Hotline at 215-516-2000 to verify what I have told you.

Further, EVEN IF you had to pay Social Security taxes, you would NOT pay these taxes direct to the IRS; you would pay them THROUGH YOUR EMPLOYER, because the taxes you pay have to be matched dollar-for-dollar by the employer.

I say again: this tax person is giving you BAD ADVICE, and could end up costing you $2,200 in taxes that you do not owe! If you do not believe me, call the IRS International Tax Line yourself and ASK! They will verify everything I have told you.