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nico33 · Jan 28, 2009, 09:24 PM

Hello!
My wife changed status from F2 to H1B in June 30th 2008. I changed status from F1 to H1b in Oct 1 2008, after 2 years on F1/OPT. Both are currently working. My Wife took a trip in September 2008 of 5 days abroad to get her h1b visa stamped in the passport, so I guess that put her just under the 183 day limit. Is there any chance we can file as married filing jointly? What is our best option? She is currently working on a different State, I travel every weekend :(, does that affect the application somehow?
Thanks for all your help!
Nicolas.

AtlantaTaxExpert · Jan 29, 2009, 01:02 PM

Nicolas:

You can file jointly with your wife and you both CHOSE to be treated as resident aliens. This will allow you to claim the $10,900 joint standard deduction plus two $3,500 personal exemption (for yourself and your wife).

The downside is that:
• you must WAIT to meet the Substantial Test before you can file, which means you must wait until about 30 April 2009.
• you must declare ALL 2008 world-wide income, but you can at least partially offset any double taxation by claiming a Foreign Tax Credit (Form 1116). This MAY be an isssue for you, but not likely.

Even with the downside, this is probably the best way for you to file.

nico33 · Jan 29, 2009, 06:26 PM

Thanks AtlantaTaxExpert,
My only concern is that maybe I did not express myself correctly. My wife has only 181 days under H1b during 2008, before that she was an F2. Can we still choose to be treated as Residents for 2008?
Nicolas

AtlantaTaxExpert · Jan 30, 2009, 10:45 AM

It does not matter how long SHE has been in country.

She does not even HAVE to be in country; she could be on Mars for all the IRS cares.