Hello,

Thanks for a great site with lots of useful information. My case is the following:

My husband (then fiance) and I came to the U.S. in Sept 2003, on F1 status. I went on OPT in Aug 2005, and then on H1 on Aug 29, 2006 (non-quota employer). My husband is still on F1, studying for his PhD.

I know I do not currently meet the substantial presence test for 2006, but I would like to make the First Year Choice. In this case, do I count 183 days since Aug 29, or is it 183 days of 2007 only? Basically, can I file as a resident now, or should I wait until later in 2007? Also, if I make the First Year Choice, can my husband (F1, non-resident) and I file jointly as residents?

Thanks!

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Originally Posted by Faerine

Hello,

Thanks for a great site with lots of useful information. My case is the following:

My husband (then fiance) and I came to the U.S. in Sept 2003, on F1 status. I went on OPT in Aug 2005, and then on H1 on Aug 29, 2006 (non-quota employer). My husband is still on F1, studying for his PhD.

I know I do not currently meet the substantial presence test for 2006, but I would like to make the First Year Choice. In this case, do I count 183 days since Aug 29, or is it 183 days of 2007 only? Basically, can I file as a resident now, or should I wait until later in 2007? Also, if I make the First Year Choice, can my husband (F1, non-resident) and I file jointly as residents?

Thanks!

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You count all days in 2007 and 1/3 of the days you were in the US (on H1B) in 2006.

Thank you for your answer. Could you please also let me know if my husband and I can file jointly, as residents, in this case (him filing with me for a resident spouse, while I am actually making the First Year Choice)?
Assuming that I need to file my return at the end of May 2007 (counting all my 2007 H1 days and 1/3 of my 2006 H1 days), and if filing jointly is possible, would my husband and I each need to file form 4868 by April 15, or can we file an extension form together?

To file as resident aliens, you MUST file jointly your husband and you BOTH choose to be treated as resident aliens. This makes your husband a resident alien for every succeeding year, which means he PAYS Social Security and Medicare taxes on any OPT/CPT jobs he gets, even though he is still under the F-1 visa. Something to consider.

If you still want to file jointly, file Form 4868 TOGETHER.