Dear tax expert,

I was on OPT/F1 till 06/05, on H1 from 06/05 to 08/05, then I started using my EAD obtained from my pending 485 from 09/05. I understand I can file as resident and use 1040 base on the substantial presence test as it is over 183 days since I used H1. But there is no case example for EAD from pending 485, can you confirm me this?

My questions are:
1. Since I was on OPT till 06/05 with no SS and medicare paid (but they did tax me on federal for all the income during that period, strange? But true), can I still use the tax treaty on top of the standard deduction and personal exemption? If not, why? Any references?

2. My kid doesn't have a SSN but has 485 pending, can I get child tax credit for him?

Thanks a lot!
Squarepants

I have no experience with EAD. You need to get a readout from INS as to when the H-1 went into effect.

1) No. There are only very specific instances where you can claim the treaty exemption while filing as a resident alien. You can check IRS Pub 901 for details.

2) Yes, if he was in the U.S. for more than 6 months and you file as a resident alien.

Can you please go through page 49 to 50 on Publication 519. It is about Tax Treaty Benefits for Resident Aliens. At the end of this section, there is even an example for Chinese. I think my case is for the most part the same as his. He got the treaty benefits while filing 1040.

Besides, I believe I have no problem filing 1040 because anyway I've passed the 5 year duration (see the example). In addition, I understant I can't use any NR form cause it harms my immigration status.

Do you have any reference on the half year residence requirement for my kid to be eligible to be depedent? How about child care expenses?

Thanks!

Quote:

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Originally Posted by AtlantaTaxExpert

I have no experience with EAD. You need to get a readout from INS as to when the H-1 went into effect.

1) No. There are only very specific instances where you can claim the treaty exemption while filing as a resident alien. You can check IRS Pub 901 for details.

2) Yes, if he was in the U.S. for more than 6 months and you file as a resident alien.

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Your child has to be a dependent to be eligible for Child Care Credit. The 6 month requirement can be found in IRS Pub 17.

If you think you qualify for the treaty exemption while filing Form 1040, go for it. I recommend you get professional help from a tax professional with experience in this area of taxation, because you will get questions from the IRS.