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a4ashu · Mar 18, 2008, 10:35 AM

Hello,
I believe that all students who are on F1 visa have to file as non-residents.
If a person is a student and his/her spouse is a resident (H1-B and valid substantial presence test) can they file taxes as married filing jointly on the resident form (1040).

TIA
Amit

MukatA · Mar 19, 2008, 03:19 AM

F1 visa holders are nonresidents for 5 years.
If the spouse of a F1 visa holder is resident, the F1 holder has two choices:
1. File as resident. In that case you must start paying FICA taxes on your income. Can't claim any treaty benefit.
2. File as nonresident and claim treaty benefit and the resident spouse files a separate return.

a4ashu · Mar 19, 2008, 08:28 AM

MukatA
Thanks for the answer but I am still a bit confused.

1) The treaty exemption, if I file as non-resident, is $5350 and if I file as a resident the standard deduction is $5350 and personal exemption is $3400. So the treaty exemption is less.

2) If, after filing jointly, we get a refund back, do I still need to pay the FICA taxes or do you mean that for this financial year (2008), I should start paying FICA because I filed as resident for 2007

Thanks again
Amit

MukatA · Mar 19, 2008, 11:21 AM

1. Even when you file as nonresident, you will also get personal exemption of $3,400.
2. For FICA taxes for 2007, you can't do anything now. But you must take care about 2008.

a4ashu · Mar 19, 2008, 11:36 AM

Originally Posted by MukatA

1. Even when you file as nonresident, you will also get personal exemption of $3,400.
2. For FICA taxes for 2007, you can't do anything now. But you must take care about 2008.

Pt-1 clarified - thanks

Pt-2. I will take care of paying FICA in 2008. But I can pay only my share. Since I am on F1, can I ask my employer to pay their share or will I have to pay both shares as self-employeed people do.

Again. Thanks a ton for taking time out and answering my questions. This is a great forum

MukatA · Mar 20, 2008, 02:33 AM

Point 2: Inform your employer in writing (or email) that you have accepted to file 2007 tax return as resident for tax purpose, so they should start deducting FICA taxes.
You can't pay your share, it is your employer who has to take care of this. It they don't take any action, it is not your problem any more.