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gdfernan · Feb 3, 2008, 03:41 PM

Hi,

I came to the US on August 05th 2003 on an F1 visa and stayed till May 28th of 2007. I returned on 22nd of August 2007 on an H1 visa and I am currently employed at a University. I am married and have a daughter born in 2005.

Up to 2006, I have been filing returns on 1040NR as a non-resident alien because my understanding was that time spent in the US on F1 was exempt from the substantial presence test. I have 3 questions.

1. For the year 2007, am I a resident alien or a non-resident alien for tax purposes.

2. Reading some other comments on this website, I got the impression that even for 2006, I might have been considered a resident alien. Is that right?

3. If I were a resident alien for 2006, what are my options to amend the returns since I have filed the 1040NR as a non-resident alien.

Thank you
gdfernan

AtlantaTaxExpert · Feb 4, 2008, 12:46 PM

1) You have a choice. You can file as a non-resident alien, or you can file jointly with your spouse and you BOTH choose to be treated as resident aliens.

OR

You can file as a non-resident alien ONE LAST TIME, filing Form 1040NR if you can claim your wife and children as dependents, or Form 1040NR-EZ if you cannot.

2 & 3) No, that is NOT correct. You were a non-resident alien in 2006.

gdfernan · Feb 5, 2008, 08:36 AM

Dear AtlantaTaxExpert

Thank you for your prompt response. If I were to select the 2nd option (File a joint return with my wife as resident aliens), I believe that I should opt for the first year election.

My residency details are as follows.

Jan 01 - May 28th: in the US on a F1 visa. I earned a student stipend.
May 29th - Aug 22nd: Out of the country
Aug 23rd - Dec 31st: In the US on a H1 visa

Given the above residency pattern, if I opt for the first year election, will I be eligible for resident alien status
1. For the whole year? Or
2. Only for the period Aug 23rd to Dec 31st?

If the answer is 2,

2A. Should I file another return to account for the period Jan 01st to May 28th? If so, what?
2B. Again if the answer is 2, should I pro-rate the allowances and the tax brackets for different periods during the year?
2C. What sort of a return should I file for May 29th to Aug 22nd. (The period I was out of the country)?

I am sorry for all the question. From a tax perspective, my situation seems very messy.

Thank you
gdfernand

AtlantaTaxExpert · Feb 6, 2008, 02:10 PM

You file only ONE return for 2007.

If you file jointly, you would be a resident alien for the WHOLE year.

If you file as a non-resident alien, you would be a NON-resident alien for the WHOLE year.