I was on a H1B visa and working in the US sine June 2007. The company that I was working for downsized and I was laid off from there on 31st Oct 2008. Subsequently since I was unable to find employment I decided to move back home at the end of November.

I got married in Dec 2008. By that time my petition by the company was cancelled but I still have a valid H1B. My wife was not in the US in 2008. Since both me and my wife were not in the US at the end of 2008, can I still file a joint tax form for the two of us?

Thanks,
AB

Unfortunately, no, not unless you KNOW for fact that you will be returning to the U.S. to work in 2009.

You must file a dual-status return for yourself only as a married dual-status alien, filing BOTH Forms 1040NR and 1040.

There is a 50-50 chance that I might return later this year. What should I do in that particular scenario? Also, since I have only consolidated W2 for the year how do I file tow tax returns? I received severance pay from my company when I returned back home. Should I declare that in form 1040 or from 1040NR? Not sure how do I distribute the income on the forms.

If you do not know, I would wait as long as possible before filing. If you KNOW you will get a refund even if you file dual-status (which is most likely because most foreign national are FORCED to over-withhold income taxes), you have until 15 April 2012 to file and still claim you refund.

Because if you come back in 2009 on a work visa, you MUST file as a resident alien, so you would have to amend the dual-status return, which can be bothersome.

If I decide to file as a dual-status alien, I have only one W2 for the entire year. Do I divide the income between the 1040 and 1040NR based on when I was present in the US and when I moved out? I received severance pay after I moved back, do I add that to the 1040NR? Also, do I attach just one w2 to both forms and send out my tax return?

You would prorate the income between the two forms, reporting the income while in the U.S. on Form 1040 and the income earned while in your home country is reported on Form 1040NR.

Do I owe state taxes for the period that I was not present in the United States?

To claim education loan interest tax credit, do I file that on my 1040 or 1040NR. My actual income is greater that 70,000 but the adjusted gross income after applying with moving expenses is less that 70,000. I am not sure what to do. Do I file that on my 1040 or 1040NR? Or do I prorate between the two?

Do I owe state taxes for the period that I was not present in the United States?

To claim education loan interest tax credit, do I file that on my 1040 or 1040NR. My actual income is greater that 70,000 but the adjusted gross income after applying with moving expenses is less that 70,000. I am not sure what to do. Do I file that on my 1040 or 1040NR? Or do I prorate between the two?

Which return did you file for 2007? Purpose of this question is to find out if you can file joint return as residents for 2008.

You have completed Substantial Presence Test in 2008, and you have also completed 183 days in 2008, which means you are resident for 2008. Now the question arises, what is your residence termination date?

Hi MuktaA,

I filed 1040NR for the year 2007 as I was on OPT for the majority of the year and my residency in the US ended sometime in the last week of November.