[ranchen]

I and my wife are Chinese. I was F-1 and my wife was F-2 from 08/2007 to 04/2011, in which I was on OPT from 08/2010 to 04/2011. I am H-1B and my wife is H-4 from 05/2011 to current. My spouse has no SSN or ITIN now.

I guess I am on dual-status for 2011 tax year. Can we choose Resident Alien Status for the whole year of 2011 as explained on page 9 of Pub. 519?

If so, several questions:
1. Am I still free of Social Security tax and Medicare tax during OPT (01/2011 to 04/2011)?
2. Can I still claim first $5000 income tax free under US-China tax treaty?
3. Can I use the standard deduction for married filing jointly?
4. Can I get deduction for the exemptions for my spouse and children if they are resident alien or U.S. Citizens? If I can, is the amount I can claim for these exemptions limited to my taxable income (before subtracting exemptions) for the PART of the year we are resident alien, or limited to the income for the whole year?

If I choose dual-status, as stated on Pub. 519 page 34, even though I cannot use standard deduction (itemized deduction only), cannot file a joint return, I still can claim for the exemptions for my spouse and children which will be limited to my taxable income (before subtracting exemptions) for the PART of the year we are resident alien. Am I right?

Thank you very much!

[AtlantaTaxExpert]

Yes, you CAN file jointly and CHOOSE to be treated as resident aliens for all of 2011.

1) YES, but make sure the money was never withheld prior to your H-1B visa. If it was withheld, you need to ask for a refund BEFORE you file jointly.

2) YES. An exception to the Savings Clause allows it. You need to request the exemption on Line #21 of Form 1040, and submit Form 8833 with the tax return to explain the exception.

3) YES.

4) YES; for the WHOLE year.

The last question is mute, since you will file jointly.

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