[sailormon]

Wife is F-1 but had FICA withheld from salary. Husband is H1b. By filing a joint return is she automatically electing to be taxed as resident alien and therefore subject to FICA tax? I read an answer in a previous post that suggested that filing jointly was a triggering event but IRS Pub 519 talks about a written election attached to the tax return for the non resident alien to be taxed as a resident when filing jointly with spouse. Help!

[MukatA]

If your husband is resident for tax purpose, yes you can file joint return as residents. You will get standard deduction of $10,700 and exemptions for both of you.

If you decide to file as Married Filing Jointly as First Year Choice, you must attach a statement signed by both of you to your return stating that you qualify to file as residents as First Year Choice and that you CHOOSE to file this way.

[AtlantaTaxExpert]

New guidance from the IRS says that a F-1 spouse CAN file jointly with the resident alien spouse and STILL claim exemption from FICA taxes while on the F-1 visa.

When I first heard this, both I and Texas Tax Expert did not believe it, but the link below clearly states this fact.

Nonresident Spouse Treated as a Resident

It remains to be seen how refund requests using Form 843 will be handled in light of this development. Past submissions of Form 843 have been rejected by the IRS because the spouse did file jointly with the husband. Attempts to change the filing status from Married Filing Jointly to Married Filing Separately were unsuccessful, because the IRS considers the decision to file jointly as IREEVOCABLE unless filing jointly was improper to begin with.