I am an international student from China. I arrived in the US in Aug. 2002. Since I have been in the US for more than 5 years during 2007, am I a resident or a nonresident alien? Someone in our payroll office told me that I could be considered as either resident or nonresident. It is my choice. Is that right? My husband holds H1B visa, so he is a resident alien. We filed jointly as resident aliens for 2006.

I received a fellowship from June to August 2007, and RA for the rest of 2007. Thus I got a 1042S form for the fellowship. I got another 1042S form for the $5000 tax treaty between China and the US.

My questions are:
(1) The code on the 1042S form with respect to the fellowship is 15, and 14% federal tax was withdrawn. I know I can get that tax back under the treaty between China and the US if I use 1040NR form. Can I get it back if I use 1040 form instead of 1040NR form?
(2) If I want to file jointly with my husband as resident aliens, I will have to use 1040 form. Where can I put the information of 1042S form to 1040 form? Am I still qualified to get the tax exemption?
(3) If I can use 1040 Form and get the tax exemption, what else do I need to provide? Usually we need to attach 8834 form and fellowship grant letter to the 1040NR form? Do I need to attach those to the 1040 form?

Thank you very much for your help!

1. Choice 1: Your husband files resident return as MFS, and you file nonresident return

2. Both of you file resident return as MFJ. Then you don't get treaty benefits and must pay FICA taxes on F1/OPT or J1 income.