[paweltq]

Hello,
I hope I can get some advice here. I am married, and both me and my wife live in US. I used to be J-1 student, and she used to be J-2 dependent. On January 14, 2010 my status in US was changed from J-1 to H-1B, and her's was changed from J-2 to H-4. I understand we are both now resident aliens as we meet the substantial presence test. In that case, however, I am dual-status alien for tax year 2010 (I started as nonresident alien, and then became resident alien sometime during 2010). My understanding is that I can choose that both of us are treated as resident aliens according to section "Choosing Resident Alien Status" in Publication 519, and file a joined tax return:

If you are a dual-status alien, you can choose to be treated as a U.S. resident for the entire year if all of the following apply.
You were a nonresident alien at the beginning of the year.
You are a resident alien or U.S. citizen at the end of the year.
You are married to a U.S. citizen or resident alien at the end of the year.
Your spouse joins you in making the choice.
This includes situations in which both you and your spouse were nonresident aliens at the beginning of the tax year and both of you are resident aliens at the end of the tax year.

Am I reading this correct? Finally, I see that we need to attach a declaration that we qualify to make the choice and that we choose to be treated as U.S. residents for the entire tax year. Could you please point me to an example of such a statement?
To make things simpler, neither of us have any income outside of US, and we have not earned any money while we were in J status in 2010.

Thank you very much for your help!
Pawel

[AtlantaTaxExpert]

Yes, you are reading it correct. You can file jointly with your wife.

Include in the statement the tax year and any phrasing that includes all the info that is called for by IRS Pub 519.

[paweltq]

Thanks AtlantaTaxExpert! At least now I know I can file jointly with my wife no matter what. I have one more question though. I was going through details of Pub 519. The publication has the following under the dual-status aliens/first year residency definitions:

"If you are a U.S. resident for the calendar year, but you were not a U.S. resident at any time during the preceding calendar year, you are a U.S. resident only for the part of the calendar year that begins on the residency starting date. You are a nonresident alien for the part of the year before that date."

Now, the key expression is the residency starting date. It is defined below that statement as follows:
"Residency starting date under substantial presence test. If you meet the substantial presence test for a calendar year, your residency starting date is generally the first day you are present in the United States during that calendar year."

As I was present in US as of 01/01/2010 (I entered US well before that date, and my status from J-1 to H-1B was changed while I was in the US), would that mean my residency starting date is actually the first of January, and I am actually considered resident alien no matter what? That would mean I do not need to attach any statements to my return, and can e-file everything making it such a simple process :)

Thanks for advice!
Pawel

[AtlantaTaxExpert]

The time you were in the U.S. while under the J-1 visa does not count in Substantial Presence Test calculations.

You do the calculations as if 1 October 2010 is your first day in the United States.

So the statement AND the mailing of the return ARE required.

[paweltq]

AtlantaTaxExpert, thanks for your time. I am still a little bit confused though. Can we clarify a bit? I changed my status from J-1 to H-1B on 01/14/2010, and not in October as you mentioned in your answer. I am not counting the days I was on J-1 in 2010 in the substantial presence test for year 2010. As I changed status to H-1B on 01/14/2010, I pass this test of course. I am referring to the Residency starting date under substantial presence test. The definition in Pub 519 states:

"If you meet the substantial presence test for a calendar year, your residency starting date is generally the first day you are present in the United States during that calendar year."

I was in US on 01/01/2010 (and was not traveling internationally at all in 2010), so my suspicion was that my residency starting date IS actually on 01/01/2010. Isn't that correct? The definition for residency starting date does not mention any specific visa type, like J-1, H-1B or whatever else. That is only mentioned in substantial presence test, but I take that into account.