I was on L1-b visa from 2005-2008 and my wife was on L2 visa during all that time and she had EAD and SSN then, I applied for H1- B visa and it was approved and we went back to India in December 2008 together,

I reentered US on H1-B visa in Feb 2010 and Wife reentered US on H4 visa in May 2010.

Can I use her SSN to file tax as Married filling jointly. The ssn was obtained in L2 visa status but we where out of the country for entire 2009.

If I can't use the SSN then what is the process I must follow Please advice

Call the Social Security Administration and confirm that her SSN is still active and assigned to her. If so, then you can use it on the 2010 tax return.

If not, then you will need to submit Form W-7 to get her an ITIN.

On your first tax return under the L-1B visa, did you use the Married Filing Joint option under First Year Choice? If not, you can file under this option for 2010.

If you DID file under First Year Choice in 2005, you cannot file that way for 2010.

You CAN file as a resident for 2010 if you failed to submit a Residency Termination Statement with your 2008 return. However, you will have to file a U.S. tax return for 2009 using Form 2555 to claim the Foreign Earned Income Exclusion and probably pay NO tax for 2009.

If you fail to file the 2009 return BEFORE the 2010 return, the IRS will notice that there is no 2009 return on file with them and put a HOLD on your 2010 refund until the 2009 tax return is filed.

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