Sorry to bring similar questions but I believe my case is somewhat confusing..

I have been H1B since 10/1/2008 and was in US since Aug 2005 as F1
(BTW, I am South Korean.. )

2005: F1 Student since Aug 2005: Filed 8843 Only
2006: F1 Student : Filed 1040NR and 8843
2007: F1 Student & F1 OPT: Filed 1040 NR and 8843
2008: F1 OPT till end of Sep, H1B since Oct

Based on some research I understand I might be dual status... However, CINTAX, the NR prep program I have used, bounce me back that I am a resident for Tax purposes. I also have histories of staying in US in the past as well.

1997: J1 Student since Aug 1997
1998: J1 Student till May 1998
1999/2002/2003: was in US like 5-10 days per year.

So I am also hearing the Student related NR Exempt only applied to 5 calendar years. If that is the case am I being considered as Residual by default?

Can anybody help me?

Thanks a ton!

BTW I am married as well... :)

You can file resident tax return as Married Filing Jointly. You will have to wait for 5 months to file your tax return till you meet the Substantial Presence Test (of 183 days) in 2009.

You must both declare your worldwide income for 2008. If you have any foreign income, and on that income you paid taxes in the foreign country, then you can claim foreign tax credit. Read about H1-B tax filing: Your U.S. Tax Return: The U.S. Visas (http://taxipay.blogspot.com/2008/08/us-visas.html)

Actually, he does NOT have to wait, because the two years as a J-1 student (1997 and 1998) count against the five-year exemption, which expired for him on 31 December 2007.

He can file jointly with his wife immediately. She may need to submit Form W-7 to get an ITIN, so his STATE tax return may get delayed waiting for the ITIN, but he can mail tax forms in tomorrow if possible.

Thank you all!

So, maybe I am double checking, I need to file1040 Resident (Not NR) and don't have to wait.
(Since my wife already has ITIN from 2006 report I do not need to wait for that reason as well.. and my state does not have income tax :) [Washington])

One question is 5 year rule. As you see the visa type was different and I did not have any income to report for J-1 period. But looks like still those years as "Student" counts togeter.. Am I right?

Thanks a ton for clearing the clouds in my head!

For purposes of the five-year rule, J-1 and F-1 are interchangeable if the J-1 visa was for a STUDENT, which is the case for you.