[bradriel]

Hi,

I am a Canadian citizen married to a Japanese citizen (who lives and works in Japan), currently going to school in the US on an F1 visa. I've been on the F1 since Sept/07, living pretty much continuously in the US. School will finish in Jun/2010, and I expect to begin work in the U.S. in Sept/2010. I further expect to primarily be in the US between June and Sept/2010.

Subsequent to graduation, I will attempt to obtain either OPT or a TN visa.

Considering the 2010 tax year, I have the following questions:

1) if I choose OPT, I must still file as a NR.. right?
2) more importantly, if I choose TN, must I file as an NR, or may I file as a resident? What's the basis for the decision?

Concerning 2, I've already seen answers on this forum for this question with respect to H1B visas (i.e. must file as an NR); however, I haven't seen any explanation as to *why* one must file as an NR after switching from F1 to non-F1 (e.g. substantial presence test? Other statutory language/regulation stating something like a test based on relative portion of the tax year spent on F1 and non-F1?)

Thanks.

[MukatA]

1. Right
2. If you do not complete substantial presence test on TN visa, you have two choices:
Your U.S. Tax Return: Substantial Presence Test
a. File nonresident tax return and form 8843.
b. File joint return as residents. Attach W-7 (ITIN application) for your spouse with your tax return.

[AtlantaTaxExpert]

You can find an explanation for the Substantial Presence Test in IRS Pub 519, which can be downloaded from Internal Revenue Service.