Hi,

I am on H1-B and my wife is on H4. My son is a US citizen who was born in 2004. My wife and kid were out of US for 11 and a half months visiting my country on a vacation. I have the following questions:
1. Can I still file with "Married Filling Jointly" status?
2. Can I still claim my child as a dependent to get the $1000 tax credit?

Thanks,
Swapnil.

Swapnil:

If you are on a H-1B and your wife is on a H4 visa, you may file as a resident alien, in which case you can file Married Filing Jointly and you can claim your child as a dependent.

Unless your income is exceptionally high, you also qualify for the Child Tax Credit for your son.

Hi AtlantaTaxExpert,

Thanks for the quick response. I was only worried because I read on IRs site about the new tax law that, for a child to qualify as a dependent he must have stayed with you for more than 6 months. And since my wife and son were out of US for 11 and a half months in 2005, I was not sure about claiming my son as a dependent. Do you think I can still claim him as a dependent?

Thanks,
Swapnil.

Swapnil:

The six-month rule applies normally only if someone other than his parents attempt to claim the child as a dependent.

With whom did he stay during this 11.5 month period, and is that person attempting to claim him on their tax return?

He was staying with my wife all the time. And no one else is going to claim him as a dependent.

Swapnil.

Swapnil:

Then do not worry about it. Claim him.

Thanks ATE!

I really appreciate your prompt responses.

Swapnil.

Glad to help!