[SGautam]

I entered the US as H1B visa holder in Mar2008 and returned back to India in 15-Dec-2008. My wife joined me on H4 in US for a 1.5month during the above tenure. Can I file my US tax return as 'Married Filing Jointly' for the year 2008. Do I qualify the substantial presence test, should I file as a resident or non-resident? Please advice.

[MukatA]

You can file joint return as residents. This is true even if your spouse has never been to the U.S. and is non-resident. Attach W7 (ITIN application for your spouse) with the tax return. You will also attach "First Year Choice" statement.

You must both report your worldwide income for the year. //np Read about H1-B tax filing: Your U.S. Tax Return: The U.S. Visas

[SGautam]

Thanks for your advice MukatA. Can you please elaborate if there is any form for "First Year Choice" statement & for declaring worldwide income?

[MukatA]

On your return, you must report your world wide income. If you paid taxes in the foreign country, you will claim credit for taxes paid in the foreign country by filing Form 1116 or can file form 2555 Foreign Earned Income Exclusion.. Read: Your U.S. Tax Return: U.S. Citizen or Resident with Foreign Income

[AtlantaTaxExpert]

The First Year Choice Statement has your's and your wife's name and address on it, and your SSN.

It says: We, the undersigned, qualify for the First Year Choice and we CHOOSE to be treated as resident aliens for all of 2008", or words to that effect.

This statement is thus written, signed proof that you and your voluntarily make ALL of your 2008 world-wide income subject to U.S. income taxes.

[SGautam]

Appreciate the valuable advise you shared.

Just to make sure I got it correct. I need to send the following documents to the address mentioned on W-7
1. Filled W-7 form
2. Proof of citizenship... Notarized copy of passport
3. Filled 1040 form
4. First Year of Choice statement, can this be typed on plain paper?googl

Additionally which form 1116 or 2555 should I be filling, I am employed with software consulting firm in India and my travel/stay in US(Mar-2008 to Dec-2008) was part of assignment from same firm's employment. Is filling 1116/2555 optional?

[MukatA]

For Form 1116 or 2555 read the blog referred in my previous post.

Your tax return needs professional help. You can contact AtlantaTaxExpert at [email protected].

[AtlantaTaxExpert]

In my opinion, you cannot claim the Foreign Income Exclusion because you were NOT a resident alien for the entire exclusion period.

Hence, you need to file Form 1116 and claim the Foreign Tax Credit.