I am a Chinese. My OPT ended in 2/28/05. My fisrt $5000 was tax free because of the treaty. However, my SS and medicare tax were withhold for these two months under my OPT. My H1B started on 3/1/05.

I would gratefully appreciate your help on the following questions:

1) Am I a dual-status alien?

2) May I use F1040 or F1040A for 2005 tax refund?
3) Do I need to attach a statement required to make the first year choic?

4) May I file F1040A or F1040 under the married filing jointly with my nonresident husband?
He worked using his OPT in US for a couple of months in 2004; he received about $2000 bonus in 2005 for the period he worked in 2004 from the US company. Therefore he has a W2 for 2005. He worked in China for the whole 2005. But he visited me and stayed in US for about 50 days.

5) IF we file as married filing jointly, do we need to include (report) his income in China? He has bank account in China. He paid tax for Chinese government and has about 8 months tax report available (in Chinese). Do we need to use them and how?

6) As of my SS and medicare tax for Jan and Feb 2005 under my OPT, may I get them back?

Thanks again for your insight and suggestions!

EmmaBetty:

1 & 2) You are dual-status, but you can file Form 1040 or 1040A as a resident alien because you meet the Substantial Presence Test.

3) You will need to attach the statement.

4 & 5) You probably could file jointly with your husband, but his Chinese income (wages and interest) would be subject to U.S. taxes. You will get a credit for the Chinese taxes paid, however.

6) You may be able to get the withheld Social Security and Medicare taxes back by filing Form 843. I do not think filing as a resident alien takes that right away from you, but I am not sure. You may want to post your question on www.thetaxguy.com. He specializes in taxes for non-resident aliens and has a lot more experience than me.