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starbucksRick · Jan 19, 2009, 07:22 AM

Hi,

I have been in the US since August 13 2004 on F1 visa. I was on OPT from January 2007 until January 2008 and then F1 again from January 2008 to September 31 2008. My H1B was approved and became effective on October 1st 2008.

I was wondering if I can file 1040 form instead of 1040NR? Possibly by using the first year choice?
If by using the first year election (or otherwise) I can't file 1040 for the full year, what start date can I use for my 1040 knowing that I have never left the US since I have arrived in 2004.

The thing is that I have education and moving expenses in 2008 ($8000+) that I would like to claim on my return.

Thanks,
R.

MukatA · Jan 19, 2009, 10:56 AM

For 5 years on F1/OPT you are non-resident. If you are not married, you will file non-resident tax return for 2008.
You can not claim education expenses. Which moving expenses?

starbucksRick · Jan 19, 2009, 11:20 AM

In January 2008 I had job related moving expenses where I was working on CPT until I have received my H1B.

starbucksRick · Jan 19, 2009, 11:21 AM

And I think that it should be dual-status. I am on H1B as I have indicated and I did begin my residency.

AtlantaTaxExpert · Jan 20, 2009, 10:28 AM

StarbucksRick:

Since you arrived in country on a F-1 visa on 2004, your exemption from the Substantial Presence Test (SPT) ended when you converted to H-1B status on 1 October 2008. That being the case, you have NOT YET met SPT for 2008.

You CAN wait until early June 2009 to meet SPT and file a dual-status return, but unless you paid the education expenses AFTER 1 October 2009, you cannot claim those expenses as a deduction. Further, you CANNOT claim any education credit at all in 2008, nor can you claim the standard deduction for 2008 unless you are an Indian citizen.

You CAN claim moving expenses whether you file dual status or as a non-resident alien by detailing the expenses on Form 3903 and filing Form 1040NR.

If you are married, you can file jointly with your spouse and you both CHOOSE to be treated as resident alien. In that case, then (and only then) can you claim the education credits.

starbucksRick · Jan 20, 2009, 10:46 AM

Thanks a lot for your answers!
-R.

AtlantaTaxExpert · Jan 20, 2009, 11:46 AM

Glad to help!