[syn23]

Hi,

I am from India and came to US on F1 visa in Jan 2005 and graduated in Dec 2007. Started working on OPT from Feb 2008 and also filed for H1B visa which starts in Oct 2008. Went back to India in Dec 2008 and got married. I came back in Jan 2009 and my wife in Feb 2009. I have W2 from my employer. I have never filed tax before.
What is the procedure to file taxes for me and my wife.
Which forms do we need to fill out.
Also, am I a resident alien or non-resident alien ?
How would I get the benefit of tax treaty between India and USA?

Thanks in advance.

[IntlTax]

You have at two choices on how to file for 2008. You can file Form 1040NR as a nonresident alien. Although this is the simplest approach, you may pay more tax under this approach (you will not be able to file jointly with your wife, claim any standard deduction, or claim an exemption for your wife).

Alternatively, you can elect to file a joint tax return (Form 1040) with your wife where you both will be treated as U.S. residents for the entire year. By electing to file a joint tax return, you will both be subject to U.S. tax on your worldwide income for the entire year 2008, and you will be subject to FICA taxes on your U.S. source wage income for the entire year 2008. However, you will be able to claim a standard deduction of $10,900, as well as two exemptions ($7,000).

You cannot elect to file a joint tax return for 2008 until you meet the substantial presence test in 2009. You may need to extend the filing of your tax return to meet this requirement.

If you file jointly and your spouse does not yet have an ITIN, you need to include Form W-7 with the tax return along with the documents indicated in Form W-7.

Depending on which state you reside in, you may also be required to file a state income tax return.