Hi,

For 2009 taxes:

I am considered a *resident* alien (Swedish), because I've was a J-1 (postdoc) April 2006-Dec 2009, and I fulfill the Substantial Presence Test (SPT). I'm back in Sweden since Jan 2010.

My spouse (on a J-2), was in the US May 2008-Apr 2009. Before that she's visited as a tourist (non-married). We prefer is she can file as a *non-resident* alien for taxes. However, according to SPT she's a resident alien as well, unless:
A. Claiming closeness to foreign country (Sweden) for 2009 via Form 8840, or easier
B. Claiming Exempt via Form 8843.

Is it possible for her use the Form 8843 option? She was not "present in the United States as a teacher, trainee, or student for any part of 2 of the 6 prior".

Appreciate your help

Henrik

PS. As a comparison: I just did my Swedish tax returns; you get a two-page form with everything fill-in by the gov't. Unless you want to change something, you can sign it simply by sending an SMS. Took less than a minute to complete.

To clarify my own question: My concern is that the residence/non-residence alien tax status of a J-2 dependent may be decided solely by the status of the J-1 person, and never independently of the latter. (For instance, the immigration status of a J-2 is cancelled if the J-1 is cancelled, but not vice versa).

Which return did you or your spouse file for 2008? If you filed joint return as residents, she will file resident return as married filing separately.

Thanks MukatA.

We filed separately and as non-resident aliens. She had no income 2008 either, so she only filed an 8843 form 2008. I filed 1040NR-EZ for 2008.

On J-1 as researcher, you are exempt from residency for two years. So even for 2008, if you met SPT, you were resident.
J-2, just like J-1 principal, are exempt for two years only.
You should ask AtlantaTaxExpert [email protected] for his comments.

Thank you MukatA.

Basically, my concern was if it is possible that J-2 is non-resident at the same time as J-1 is resident. According to SPT that is exactly the case, and I cannot find any IRS documentation saying it is not possible to file as such (married file separately).

[I can imagine this happens to several foreign researchers, where the spouse join later/return home earlier than the J-1].

Yes, now I am also puzzled about my 2008 return, because it was all done by CINTAX system (provided by the university), and it decided on the exempt and status. This year it classified me as "resident" and blocked me from using it. I have to check with the CINTAX support why I wasn't resident 2008.

Thank you MukatA.

Basically, my concern was if it is possible that J-2 is non-resident at the same time as J-1 is resident. According to SPT that is exactly the case, and I cannot find any IRS documentation saying it is not possible to file as such (married file separately).

[I can imagine this happens to several foreign researchers, where the spouse join later/return home earlier than the J-1].

Yes, now I am also puzzled about my 2008 return, because it was all done by CINTAX system (provided by the university), and it decided on the exempt and status. This year it classified me as "resident" and blocked me from using it. I have to check with the CINTAX support why I wasn't resident 2008.

Turns out that I met "the Exception explained on page 3" on Form 8843, even if I was "present in the United States as a teacher, trainee, or student for any part of 2 of the 6 prior calendar years". My first two years I had foreign funding only.


Thanks a bunch to all experts help on this forum; it's a bit like open-source forums where you get enough guidance for the initial frustrating step so that you can get started yourself or at least know what actions to take.

Cheers

Henrik