I’m a citizen of P.R. China. I’m currently on H1-b visa for the first year(starting from aug 2009), teaching in a university. I was on F1-visa from aug 2004- aug 2009, and I was almost all present in U.S. A for the last three years except for 60 days in 2007. I got married with my husband in the beginning of this year, and he’s on F1 visa. So would I be eligible to pass the SPT based on my situation and am I be considered as a resident for tax purposes?



Thanks a lot for your help!

BTW, my school doesn't know much about the h1-b tax, so could you please attach some link from the IRS about my case, thanks!

[QUOTE=vidaleina;2006016]I’m a citizen of P.R. China. I’m currently on H1-b visa for the first year(starting from aug 2009), teaching in a university. I was on F1-visa from aug 2004- aug 2009, with one-year OPT from 2008-2009. I was almost all present in U.S. A for the last three years except for 60 days in 2007. I got married with my husband in the beginning of this year, and he’s on F1 visa. So would I be eligible to pass the SPT based on my situation and am I be considered as a resident for tax purposes?



Thanks a lot for your help!

BTW, my school doesn't know much about the h1-b tax, so could you please attach some link from the IRS about my case, thanks!

You have two choices:

1) You each can file separately, he as a non-resident alien and you as a resident alien for 2009. You can each claim the $5,000 treaty exemption on your return in 2009, though 2009 will be the LAST year you can claim the exemption.

2) You can file jointly in 2009, with you each choosing to be treated as resident aliens for all of 2009. You can each claim the $5,000 treaty exemption on your joint return, though (again) this will be the last year YOU can claim that exemption. Due to his F-1 visa status, your husband can continue to claim the $5,000 treaty exemption on future joint returns until his visa status changes or expires.

You would need to prepare the returns BOTH ways to be sure, but it likely that Option #2 is the best option tax-wise.

You have two choices:

1) You each can file separately, he as a non-resident alien and you as a resident alien for 2009. You can each claim the $5,000 treaty exemption on your return in 2009, though 2009 will be the LAST year you can claim the exemption.

2) You can file jointly in 2009, with you each choosing to be treated as resident aliens for all of 2009. You can each claim the $5,000 treaty exemption on your joint return, though (again) this will be the last year YOU can claim that exemption. Due to his F-1 visa status, your husband can continue to claim the $5,000 treaty exemption on future joint returns until his visa status changes or expires.

You would need to prepare the returns BOTH ways to be sure, but it likely that Option #2 is the best option tax-wise.

Thanks for your answer!:) Do you have the link stating that I'm eligible for the resident alien from IRS website, so that I can send it to my employee?

Thanks for your answer!:) Do you have the link stating that I'm eligible for the resident alien from IRS website, so that I can send it to my employee?

Sorry, there's a typo, it should be "my employer", thanks!

The options I presented are the result of my readings and interpretations of of IRS Pub 519 and the U.S.-China Tax Treaty, both of which can be downloaded from Internal Revenue Service (http://www.irs.gov).

The options I presented are the result of my readings and interpretations of of IRS Pub 519 and the U.S.-China Tax Treaty, both of which can be downloaded from Internal Revenue Service (http://www.irs.gov).

AtlantaTaxExpert, thank you so much for your time and reply!

Glad to help!