Hi,

My husband was on F1 visa till 30th Sep 2011( Since Aug 2009) and his status changed to H1 from Oct 1 2011. And I'm his dependent.
Now we have two options. Either he files his tax as Non resident where in he cannot file the return jointly or he makes First year choice and file the return as dual status alien.
I guess by option for the second choice we will get more benefits.
My question is if he opts for the second choice can he file his return jointly with me or do I have to file my return separately ( I've no income). And I also don't have ITIN yet.

Under First Year Choice, you cam file jointly if you are married. You must wait intil 1 June 2012 to file and you submit Form W-7 to request an ITIN, but the benefits from filing jointly usually makes it worth the wait.

If you need professional help with this process, please look my email address on my profile.

I'm not quite sure about the answer from AtlantaTaxExpert. I'm in virtually the same situation as the Asker, only I'm the husband in the case. According to my understanding of IRS Publication 519, if you simply file for extension and make the first-year choice when you meet the substantial presence test(which is June), you are filing as a dual-status alien and dual-status aliens are not allowed to file a joint return.(Pub 519, Chapter 6, restrictions section)

However, I'm not sure if a married dual-status alien by first-year choice can make the choice described on Pub 519, page 10, to elect to be considered as Resident alien for the entire 2011. If that is true, then you can file a joint return. Again, I'm not a tax professional so take my words at your own risk.

soloist_huaxin,

Even I've the same understanding. I guess we need to make two choices: " first year choice " so that we can have dual status and then "full year residency" so that we can file jointly.

It's pretty complicated.

You can file joint return as residents for 2011 but you must wait till you complete SPT in 2012. What AtlantaTaxExpert said is correct, and he has many years of experience in doing such tax returns.

MukatA,

So, will we be filing as dual status Aliens or Resident aliens for 2011?

Please let me know why you think you should file dual status tax return.

The reason I said my husband should file as dual status alien is because he was non resident for the entire year but, if he opts for first year choice he can be treated as resident for the part of the year he was on H1 ( i.e from Oct 1st 2011 onward). Till 30th Sep 2011 he was on F1 visa and hence exempted.

Sags80:

The ONLY reason I could see for him to file dual-status would be to maintain his "exempt" status in order to get a FICA (Social Security and Medicare) tax refund, yet STILL be able to claim you as a dependent.

If the FICA tax issue is NOT a problem, then filing jointly is the BEST course of action.