Hi,

My husband and I have very complicated situation. We do not know if we need to file separately or jointly to get maximal tax return.

I came to US from China with F1 visa in 2004 and now I am still a student with F1 visa. Based on the tax law, I am a resident alien for 2009.

My husband came to US with a F2 visa to visit me in early 2009. Then he got a research postdoc position. He went back to China and got the new J1 visa there. There is a treaty between China and US to say it is tax exempt for the first 3 calendar years for people with J1 researcher visa. However, the payroll in our university refused to collect his 8223 form since his visa type has been changed (not processed in US). Instead they suggested him to file tax return. For my husband, he is non-resident alien and can file form 8883 to get treaty benefits.

Under our situation, can we file jointly and at the same time to get treaty benefits?

Thanks in advance.

"An individual who is a resident of the People's Republic of China and who is temporarily in the United States primarily to teach, lecture, or conduct research at a university or other accredited educational institution or scientific research institution is exempt from U.S. income tax on income for the teaching, lecturing, or research for a total of not more than 3 years.
This exemption does not apply to income from research carried on mainly for the private benefit of any person rather than in the public interest."

If the visa is J-1 researcher, his income is exempt from federal income tax. File Form 1040NR or 1040NR-EZ with Form 8843. He will get the refund.

On J-1, he is exempt from FICA taxes for two year. If University withheld SS tax and Medicare tax, he should send an email to the university for refund of FICA taxes. If university does not refund it file Form 843 for refund of FICA taxes. Wait about 2 months after filing tax return to file Form 843. Your U.S. Tax Return: Social Security and Medicare (FICA) Taxes for Non-resident Exempt Individual (http://taxipay.blogspot.com/2008/03/non-resident-exempt-individual-social.html)

You should file your return as married filing separately.