[zsam]

Hello,
My situation is a little bit complicate.
I am a Chinese, I went to US in June 2004, and worked full time under F1-OPT since Nov. 2008. I switched to H1-B in Oct. 2009. I married in 2004. But my wife is working in China for almost all the time last year in China for a Chinese company. I am wondering for my case, am I a resident alien? Can I file jointly with my wife as resident aliens, even she is working in China? Since my wife does not have an SSN, how can I file the tax reture.

An other thing is I was told, that if I stay in US for 5 years, I will become a resident alien. If it is ture, I think I should pay Social Security Tax and Medicare Tax in the whole 2009 year. But my company did not withhold those two taxes from my salary for the first 9 month. I am wondering should I pay those two taxes for the first 9 month? Since I have already get the W-2 form. What should I do if I have to pay those two.

Any help will be greatly appreciated!

[MukatA]

Choice 1: You can file non-resident tax return.

Choice 2: You can file resident tax return as Married Filing Jointly. You will have to wait for 5 months to file your tax return till you meet the Substantial Presence Test in 2010. Your U.S. Tax Return: Substantial Presence Test

You will get standard deduction of $11,400 and exemptions ($3,650 each) for both of you. You must both declare your worldwide income for 2009. If you have any foreign income, and on that income you paid taxes in the foreign country, then you can claim foreign tax credit (Form 1116) or you can use Foreign Earned Income Exclusion (Form 2555). Your U.S. Tax Return: U.S. Citizen or Resident with Foreign Income
You will complete forms W7 (application for ITIN) for your spouse and children and attach with your tax return. You can also deduct moving expenses. Also read Nonresident Spouse Treated as a Resident.

[zsam]

Hello Tax Expert,
Thank you so much for your answer. Appreciate!
Regarding to Choice 2, I am wondering why I have to wait for 5 months to file tax return.
I've been in US since 2004 June. 2009 is the sixth year I am in US. So I think I meet the Substantial Presence Test in 2009. The tax return filing is for 2009. I guess I don't have to wait 5 months. Am I right?

Thank you again!

Choice 1: You can file non-resident tax return.

Choice 2: You can file resident tax return as Married Filing Jointly. You will have to wait for 5 months to file your tax return till you meet the Substantial Presence Test in 2010. Your U.S. Tax Return: Substantial Presence Test

You will get standard deduction of $11,400 and exemptions ($3,650 each) for both of you. You must both declare your worldwide income for 2009. If you have any foreign income, and on that income you paid taxes in the foreign country, then you can claim foreign tax credit (Form 1116) or you can use Foreign Earned Income Exclusion (Form 2555). Your U.S. Tax Return: U.S. Citizen or Resident with Foreign Income
You will complete forms W7 (application for ITIN) for your spouse and children and attach with your tax return. You can also deduct moving expenses. Also read Nonresident Spouse Treated as a Resident.

[MukatA]

Yes, you do not need to wait to file your tax return.