Hi,

First of all, I've found this forum and some of the people here to be very knowledgeable and helpful. I've done some homework so hopefully this should be useful for 80% of people who, like me, come to study a higher degree in the US and stay working.

Context
Year | Visa

| Income
---------------------------------------------------
2007 | F1 (+wife F2)

| $0
2008 | F1-OPT until oct 1st (+wife F2)

| $XYZ
H1-B from Oct (+wife H4)

During 2007 I filed only 8839

Questions:
1- Now, in 2008, according to the "First year choice" I can file for dual-status (1040NR + 1040), correct?

2- Since I'm I can claim standard benefits and married filling jointly, I'm better off claiming resident using the "First year choice". In order to do that I need to 'wait' using form 4868, correct?

3-Why do I need to wait? According to pub 519 (http://www.irs.gov/publications/p519/ch01.html#d0e1603) I need to pass the presence test as of April 15 (which is 181 days from October 1st)

4-When I submit 4868 and, using calculations based on 1040NR I realize that as a non-resident I would owe taxes, what should I do?

5-What should happen if I know that using the 1040 filling jointly I actually should get a refund? Should I still send money with 4868?

6-When I submit 4868, should I file something else? What about my wife (does she need to file a separate 4868?

7-When I later file the 1040, how should I say that I want form do I need to use to declare "first year choice"?

8-Also, when I later file for the 1040, do I still need to file for 8843 so I correctly log exemptions for FICA and SS?

9-My wife doesn't have an ITIN, can I just file everything together with my 1040?


Thanks a lot for all the help!

PS: Please send me a message if you feel that you want to help with the particular fillings.

Actually, I was reading Pub 519 and I think that all I need to do is file 1040 jointly with my wife + a declaration that you both qualify to make the first year choice.

According to the pub 519:

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.

*You were a nonresident alien at the beginning of the year.
*You are a resident alien or U.S. citizen at the end of the year.
*You are married to a U.S. citizen or resident alien at the end of the year.
*Your spouse joins you in making the choice.

My understanding is

-The first statement: Me and my wife are a dual-status alien under the first year choice (we got the visas in October)
-Bullet 1: I was an F1 and she was an F2
-Bullet 2: I was a resident (h1) and so was she (h4)
-Bullet 3: This is the tricky one as it seems to imply that I need to be married to a green card holder or US citizen! I'm married to a resident alien according to the tax code and the first year choice
-Bullet 4: We file together for tax purposes

Questions:
1- Now, in 2008, according to the "First year choice" I can file for dual-status (1040NR + 1040), correct? Yes, but do not go for this.

2- Since I'm I can claim standard benefits and married filling jointly, I'm better off claiming resident using the "First year choice". In order to do that I need to 'wait' using form 4868, correct? Yes.

3-Why do I need to wait? Till you complete SPT in 2009.

4-When I submit 4868 and, using calculations based on 1040NR I realize that as a non-resident I would owe taxes, what should I do? Do calculation based on joint return.

5-What should happen if I know that using the 1040 filling jointly I actually should get a refund? Should I still send money with 4868? No, if you have a refund.

6-When I submit 4868, should I file something else? What about my wife (does she need to file a separate 4868? No

7-When I later file the 1040, how should I say that I want form do I need to use to declare "first year choice"? Yes, attach First Year Choice statement.

8-Also, when I later file for the 1040, do I still need to file for 8843 so I correctly log exemptions for FICA and SS? Ask AtlantaTaxExpert

9-My wife doesn't have an ITIN, can I just file everything together with my 1040?
Attach W7 (ITIN application) with your tax return.

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.

*You were a nonresident alien at the beginning of the year.
*You are a resident alien or U.S. citizen at the end of the year.
*You are married to a U.S. citizen or resident alien at the end of the year.
*Your spouse joins you in making the choice.
...
-Bullet 3: This is the tricky one as it seems to imply that I need to be married to a green card holder or US citizen!. I'm married to a resident alien according to the tax code and the first year choice


What about the bullet 3? How do we satisfy it not being married to a green card holder or a US citizen?

And what is the best way to contact AtlantaTaxExpert?

mukatA: wouldn't I, since I'm married, just file in April since all of these are true I(according to pub519):

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.

*You were a nonresident alien at the beginning of the year.
*You are a resident alien or U.S. citizen at the end of the year.
*You are married to a U.S. citizen or resident alien at the end of the year.
*Your spouse joins you in making the choice

aleles : my understanding of bullet 3 is that:
a) either you are married to a US citizen OR...
b) you are married to a resident alien

Now remember, resident alien is NOT the same as permanent resident (green card holder); resident alien= resident under the eyes of the IRS (thus the trap that everyone falls into). Since my wife, under first year choice, is resident alien, then my understanding is you that you are married to one.

Can anyone please confirm this? (the experts on the forum)

For 2008, you can file joint return as residents after you complete SPT in 2009.