[cn2usa]

Hi, I was a F1 student in US since Aug.2003 to Sept.2007. For these years I consider myself as a nonresident alien for tax purpose.

Then I graduated and got H1B in Oct.1 2007. And since then on, I consider myself as a resident alien for tax purpose.

In Sept.2008 I married a US citizen. In Dec. 2008 we filed green card application, but didn't get approved until 2009.

My question is, in the tax return for 2008, I read that I could claim the tax treaty, as I came with F1 and later converted to H1B. Does the marriage make me unable to claim it? What if I file "married and file separately?"

Thanks!

[MukatA]

For 2008 you must file resident tax return. You can only file as married filing jointly or married filing separately.
You will not get treaty deduction on H1-B visa.
Read about F1/H1-B tax filing: Your U.S. Tax Return: The U.S. Visas

[IntlTax]

What country are you from?

[cn2usa]

I was born in China.

I read from other threads, that there's some clause that makes me eligible to claim tax treaty even under H-1B as long as I entered US with F1 visa.

[IntlTax]

IRS publication 678 FS provides:

A student from China is entitled to the $5,000 exemption for the amount of time reasonably necessary to complete education or training. A student will become a resident alien for tax purposes after 5 years but is still entitled to the treaty benefit as long as he or she remains a student.

After you changed to H!B, you were no longer a student.

[AtlantaTaxExpert]

I agree with IntlTax, but I believe that you CAN claim the $5,000treaty exemption in the year you switched to H-1B if you spent more than six months on F-1 status in that year.