[scorpion83]

Hello,

My visa status changed from F1 (on OPT) to H1B on 1st Oct 2009, & my wife's visa F2(dependent) to H4(dependent). Since I want to file as married filing jointly, can I file 1040 instead of 1040-NR? I am an Indian citizen & I have been in the US since 2006 on F1.

I will appreciate help in this matter since no one has been able to guide me well.

[MukatA]

Yes, you can file joint return as residents. Your U.S. Tax Return: The U.S. Visas

[Bazooma]

Yes, you can file joint return as residents. Your U.S. Tax Return: The U.S. Visas

MukatA,
I thought the days spent as F1 do not count towards residency and there for he would not be able to file as a resident unless, he waits until June to pass the substantial presence test.

I am asking this because I am in a similar situation and this was my understanding from searching this forum. Correct me if I am wrong.

[mack20007]

You're correct Bazooma, however there is and important exception. If he had the F-1 for 5 yrs or less, includiing the 2009 year; the first part of 2009 is also exempt, and he cannot be a resident all year, in the traditional substantial presence test. Therefore, you're correct he would be a dual status alien, and would normally not be allowed to be a resident for the full year and file MFJ.

However, there is a special provision that married, dual status aliens can elect, when they are NRA at the beginning of the year and RA at the end of the year. Its called "Choosing Resident Alien Status", and is fully described in Pub 519, p.9, available on the IRS website.

So, he can file MFJ for 2009, under these special provisions. They must follow the rules as stated in this publicaiton, and attach the applicable statement to that return stating they are making this election.