I was on F1 till November 2008 and then on H1-B for rest of the year. I got married around the time I changed to H1-B. I have been in US since Aug 2006 and for more than 31 days in 2008 on H1-B. My spouse is on H4 with me in the US.

Here are some of the questions I have:
1. What tax forms should I be filing?
2. Do I qualify for dual status?
3. What exemptions can I claim?
4. Would I be a resident or a non-resident alien for tax purpose?

Thanks!

Choice 1: You can file non-resident tax return.

Choice 2: You can file resident tax return as Married Filing Jointly. For this you must have spent 31 days in a row in the U.S. on H1-B.
You will have to wait for about 170 days in 2009 to file your tax return till you meet the Substantial Presence Test (of 183 days) in 2008. Read Read Your U.S. Tax Return: Substantial Presence Test (http://taxipay.blogspot.com/2008/04/substantial-presence-test.html)

To learn more about the taxation of foreign students and scholars, see Foreign Students and Scholars (http://www.irs.gov/businesses/small/international/article/0,,id=96431,00.html)

You can file jointly with your wife and you both CHOSE to be treated as resident aliens. This will allow you to claim the $10,900 joint standard deduction plus two $3,500 personal exemption (for yourself and your wife).

The downside is that:

• you must WAIT to meet the Substantial Test before you can file, which means you must wait until about 11 June 2009.

• you must declare ALL 2008 world-wide income, but you can at least partially offset any double taxation by claiming a Foreign Tax Credit (Form 1116).

Even with the downside, this is probably the best way for you to file.

You can file jointly with your wife and you both CHOSE to be treated as resident aliens. This will allow you to claim the $10,900 joint standard deduction plus two $3,500 personal exemption (for yourself and your wife).

The downside is that:

• you must WAIT to meet the Substantial Test before you can file, which means you must wait until about 11 June 2009.

• you must declare ALL 2008 world-wide income, but you can at least partially offset any double taxation by claiming a Foreign Tax Credit (Form 1116).

Even with the downside, this is probably the best way for you to file.

Hi ATE/Mukat,

Thanks a lot for answering the question and providing the downsides to it.

I have a couple of more questions -
* What do I have to be doing to file the return in June since this would be past the deadline of Apr 15.
* How much (less?) will be my exemptions/deductions if I chosse to file as an NR?
* Do I qualify to file as a dual status resident and how would it work out compared to resident filing?

1) File Form 4868 to request an extension. If you owe taxes, send a check with the Form 4868.

2) a LOT less, as you can claim ONLY yourself with probably NO standard deduction.

3) There is NO tax advantage to filing dual-status, especially since you have to wait the same amount of time than if you file jointly.

BOTTOM LINE: Wait and file jointly.