[newbye]

I am on F1 visa and I am considered a resident alien because I stayed in US from 1997 to 2001 on F1 visa and beginning 2007 until now also on F1 visa. In 2008, I earned income in the US and was still receiving income from my home country. My wife is working in US but she's a nonresident. We have two children who stayed for 7 months with us in the US.

My question is am I really considered a resident alien or a non resident alien? Do I have a choice here? I can't decide whether its better to file as non resident alien and file separately or file as resident alien and file married jointly with wife. Would she be eligible since she's a non resident? And our children have no ssn, so they are not considered our dependents, right?

Thank you in advance.

[MukatA]

You will file resident tax return.
You can file joint return as residents and claim your children as dependents. You will attach W7 (ITIN applications) with your tax return. Read Your U.S. Tax Return: Filing Status for Married

[newbye]

You will file resident tax return.
You can file joint return as residents and claim your children as dependents. You will attach W7 (ITIN applications) with your tax return. Read Your U.S. Tax Return: Filing Status for Married

I don't think I need to fill W7 since both me and my wife have SSN. Or did you mean it was for our children? According to the site you gave, my children are considered resident since they stayed more than half a year in 2008. But when I'm filling up the tax cut software, it says I can't claim them as dependent since they don't have a SSN. Is there something wrong with taxcut?

And how about my salary overseas? I did receive some for 2008 although I wasn't physically present there. I was in US for all 365days. It seems the taxcut software is more confusing rather than helpful.

[IntlTax]

If you don't elect to file jointly with your wife and have both of you treated as residents for the entire year, then you are a U.S. resident for only part of the year. Filing jointly is probably better from a tax perspective, but you will have to include the salary from overseas on your U.S. tax return and either claim foreign tax credits or posssibly claim the foreign earned income exclusion under the bona fide residence test using the nondiscrimination rules under the treaty.

[nigam2012]

You are not a Resident alien. As a student you cannot file 1040. You have to file 1040 NR.