Hi,

I have F1-OPT status and I am a visiting assistant professor. I entered the US on Aug. 2001 holding F1 visa and according to IRS publication 519 and the answers to some of the relevant question in this forum I should be considered as a resident alien for tax purposes because I have been here for more than 5 years. I have even applied for a change of status to permanent resident in Dec. 2006. However, I called IRS a few minutes ago and after several call transfers, someone told me that no matter what, I would be considered as a non-resident alien because I have F1 visa! Moreover, he told me that because it has not been 183 days since I applied for change of status, I will still be considered as a non-resident alien.

Was he wrong? Is it really possible that people in IRS give wrong answer?

Thanks for your help.

The IRS rep was wrong this time. That does happen, especially in this sub-specialty of tax work.

Your exempt status under F-1 expired on 31 Dec 2005.

File as a resident alien.

Thank you very much Atlanta Expert for your quick response.

Please allow me to ask you a couple of questions about my wife. She came to the US with me holding F2 visa. She had no income in 2001 (no SSN and TIN) so she didn't file for 2001 tax return. Her status was changed to F1 in 2002 due to admission to a graduate school. She got SSN afterwards, thus she filed both 1040NR and 8843 for her 2002, 03, 04, 05 returns. She is still studying under F1 (no OPT). We both applied for a change of status to permanent resident in Dec 2006. Here are my questions:

1- Is she a resident alien for 2006 tax return?
2- If the answer to the above question is yes, can we file for a joint-return?
3- Do we need to explain the situation (changing from non-resident alien to resident alien) in a letter submitted with our forms and other necessary documents?


I really appreciate your help.

1 & 2) Yes; the 5-year rule applies to her as well! She should file jointly with you.

3) No, just file the return. If the IRS challenges it (very unlikely), then you can write the letter explaining the situation.

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