I am on H1B Visa, my spouse is on F1 Visa. We filed taxes as married filing jointly and I do not see 1040NR in the last year's tax documents. Do we need to amend taxes?

[tarikadeepak]

We filed taxes through TurboTax Online last year and recently I found that a person on F1 Visa is considered as non-resident and should file form 1040NR and TurboTax does not support this form. Please advise how this can be fixed and the next steps.

[KurtL1]

Just because you have a H1B Visa and your wife has a F-1 Visa you are not necessarily considered as non-residents for tax purposes and do not need to use Form 1040NR to file your taxes.

For tax reporting purposes you could be considered a "Resident Alien". If you are an alien (not a U.S. citizen), you are considered a nonresident alien unless you meet one of two tests. You are a resident alien of the United States for tax purposes if you meet either the green card test or the substantial presence test for the calendar year (January 1-December 31) per IRS.gov Determine Alien Tax Status

Green Card Test:

You are a resident, for U.S. federal tax purposes, if you are a lawful permanent resident of the United States at any time during the calendar year. You would have been issued a Green Card.

Substantial Presence Test:

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:

1. 31 days during the current year, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   • All the days you were present in the current year, and
   • 1/3 of the days you were present in the first year before the current year, and
   • 1/6 of the days you were present in the second year before the current year.

Because your wife has an F-1 Visa she cannot count her days toward the substantial presence test for any part of five calendar years from her first day in the United States per IRS.gov Five Year Exclusion  (page 4).

An exception would be if you are a resident alien and you wish to file jointly with your wife. She could file as a resident alien if you attach or have attached a statement to your tax return stating that she elects to be treated as a resident alien for tax purposes. Per IRS.gov  How To Make the Choice (page 9).