Hi,
I am on H1B (since Oct 2006), wife was on H4 (since Dec 2006. We got married in Dec 2006 and she came to the US in Dec 2006). For the tax year 2006, we filed jointly with she electing to be treated as a resident and we filed a statement refelcting her choice to be treated as resident. For 2007 and 2008 too we filed jointly. In 2009, (Feb 10, 2009) she switched to an F1 visa and was working on Campus. She got done with her masters in Jun 2009, and since then was on OPT till Jun 2010. After that she qualified for the STEM extension, and so she is still on OPT till Nov 2011. We filed jointly for tax year 2009, without attaching any statement to reflect she be treated as a resident again. But for 2009 she did meet the SPT.
(2009 : 41 days (Jan 1 -Feb10)
2008 : 365/3 = 122
2007 : 365/6 = 60)

Now in 2010, she doesn't meet the SPT test.
(2010 : 0 days since she is on F1
2009 : 41/3 = 14 (41 days (Jan 1 -Feb10) that she was on H4)
2008 : 365/6 = 60))

My questions

1) Since we've previously made an election for her to be treated as a resident, can we still file jointly this yr with her being treated as a resident?

2) Do we need to attach a statement again asking that she be treated as a resident? Or thus her previous choice stand as long as we don't explicitly revoke it with another statement asking that she be treated as non-resident.

3) Finally if we can file jointly as residents, we don't need to file form 8843 for her. Is that correct?

1. Yes you can file joint return as residents.
2. No you do not need to attach any statement.
3. Do need to file Form 8843 with joint return.

3. Do need to file Form 8843 with joint return.

Hmm, we didn't file the form for her in 2009, as I was under the impression if we're filing jointly there is no need for the form 8843. I thought its only required when filing NR returns to substantiate why we are not residents under SPT. So if we've not filed that for 2009, is there a way to back file it then?

Who Must File:
If you are an alien individual, you must file Form 8843 to explain the basis of your claim that you can exclude days of presence in the United States for purposes of the substantial presence test because you:
a) Were an exempt individual (other than a foreign government-related individual) or
b) Were unable to leave the United States because of a medical condition or medical problem.
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Since she did meet SPT for 2009, and also we filed as resident, I thought we don't need to file 8843 for 2009. To me it seems that the form is only required if you're trying to claim exemption days for SPT, to file as a non-resident. Is that correct?

MukatA's guifdance is completely accurate.

Your interpretation IS correct; you need NOT file Form 8843 for years when your wife filed jointly with you.

Thanks ATL and MukatA.

But MukatA was saying that we "Do need to file form 8843 with joint return" which is NOT what I was asssuming, and what you said that we do not need to file 8843. Can you re-please confirm that we don't need to file 8843 for this year, and we weren't required to file it last year.