[Faerine]

Hello,

Thanks for a great site with lots of useful information. My case is the following:

My husband (then fiance) and I came to the U.S. in Sept 2003, on F1 status. I went on OPT in Aug 2005, and then on H1 on Aug 29, 2006 (non-quota employer). My husband is still on F1, studying for his PhD.

I know I do not currently meet the substantial presence test for 2006, but I would like to make the First Year Choice. In this case, do I count 183 days since Aug 29, or is it 183 days of 2007 only? Basically, can I file as a resident now, or should I wait until later in 2007? Also, if I make the First Year Choice, can my husband (F1, non-resident) and I file jointly as residents?

Thanks!

[The Texas Tax Expert]

Hello,

Thanks for a great site with lots of useful information. My case is the following:

My husband (then fiance) and I came to the U.S. in Sept 2003, on F1 status. I went on OPT in Aug 2005, and then on H1 on Aug 29, 2006 (non-quota employer). My husband is still on F1, studying for his PhD.

I know I do not currently meet the substantial presence test for 2006, but I would like to make the First Year Choice. In this case, do I count 183 days since Aug 29, or is it 183 days of 2007 only? Basically, can I file as a resident now, or should I wait until later in 2007? Also, if I make the First Year Choice, can my husband (F1, non-resident) and I file jointly as residents?

Thanks!

You count all days in 2007 and 1/3 of the days you were in the US (on H1B) in 2006.

[Faerine]

Thank you for your answer. Could you please also let me know if my husband and I can file jointly, as residents, in this case (him filing with me for a resident spouse, while I am actually making the First Year Choice)?
Assuming that I need to file my return at the end of May 2007 (counting all my 2007 H1 days and 1/3 of my 2006 H1 days), and if filing jointly is possible, would my husband and I each need to file form 4868 by April 15, or can we file an extension form together?

[AtlantaTaxExpert]

To file as resident aliens, you MUST file jointly your husband and you BOTH choose to be treated as resident aliens. This makes your husband a resident alien for every succeeding year, which means he PAYS Social Security and Medicare taxes on any OPT/CPT jobs he gets, even though he is still under the F-1 visa. Something to consider.

If you still want to file jointly, file Form 4868 TOGETHER.