F1 student, resident alien?

[grad_student_question]

Question 1

I arrived in the US in September 2015 as an F1 student, so from my understanding, I am an NR for the tax year between 2015 and 2019. However, when I was a baby(1-2 years old), I stayed in the US as an F2 dependent for one year under my parents, who were then students in the US. In this case, should I count years I stayed as an F2 towards 5 years exempt and report as a resident alien for the tax year 2019?

Question 2

In case I have to report as a resident alien for the tax year 2019, I have one more complicated question. I married in 2019 and changed my visa from F1 to F2 last year. My spouse had never been to the US started the graduate program as an F1 previous year, so I guess my spouse is an NR. If I should report my 2019 tax as a resident alien, am I allowed to report her with me as married filing jointly? My spouse came to the US in August 2019, and we both have SSNs.

If you need any further information to give me advice, please let me know!

Thanks a lot for your help in advance!

[pk]

@grad_student_question  

(A)  the fact that you were in the USA a longtime ago does not affect your situation.  You entered with your own F-1 in 2015.  Thus you were exempt  for five calendar years including the year of entry. So , absent  any change of status  or non-compliance with the visa conditions, you would have been a Non-Resident Alien till 12/31/2019

(B) your spouse  came to the USA in 2019 with her own F-1  ( was she married to you before she came here or you got married here? ). Thus she would be an exempt person till 2023 end of year.  How did she end up having a SSN, if this is her first time visit and on F-1. How did you end up with SSN  ( because you were born here or because you lived her during better days ? ).

(C) why did you change your visa to F-2  ( a dependent visa ).  AS long as she is NRA, you will continue to be NRA i.e. you do not have any independent status.  But you also cannot work , do OPT or CPT  --- you are not even supposed  to be going to school.

(D) In any case, with your F-2 and her F-1  you are both NRA and must file form 1040-NR

[grad_student_question]

Thanks for your reply.

A) I entered with F1 in 2015, maintained my visa status until 2019, and changed to F2. Now, I'm preparing for the tax return for the income I earned in 2019 with STEM OPT. So, stayed as an F2 a long time ago does not change my current filing status? Some accountants say this rule applies to one's lifetime.

B) We married in our home country before coming to the US together. I worked with my OPT under the F-1 visa, and my spouse also found a school job during her first year as a graduate student, so we both have SSNs.

C) I think visa status and residential alien status for tax purposes are two different things, and I am now preparing for the 2019 tax, which I don't think is related to my current visa status. I understand that I cannot do anything with my F2 visa status, and I am complying with my status.

D) Please review again and share your thoughts about how I should file last year's return.

Thanks for your inputs.

[pk]

@grad_student_question 

1 the exemption status is limited by if you had  used the F-1 exemption once before  -- not F-2; it is also limited by J-student/trainee visa within the last six years.  I stand by my opinion

2 understand SSN and her work  because she is allowed to work on campus

3. Slightly disagree with your comment on immigration status  and  tax filing status ( i.e. NRA or resident for tax purposes).  But it is not important in this discussion

4. You are both Non-Residents --- while F-1 you were Non-Resident & exempt ( through 12/31/2019) ; while -F-2, a dependent visa  ties your status to her status ( F-1 , exempt and NRA ).

Thus you file a form 1040-NR  ( not supported by TurboTax), you cannot file joint -- NRAs file as married , implying single .  You should use SprinTax, Tax professional familiar with international filing and or ask for help at your school foreign student office.

Is there more I can do for you ?

[grad_student_question]

Great! Thanks for your help!

One last question, should I file as a residential alien from next year (2020 Tax Year)? I am going to change my visa this coming August from F-2 to F-1 as I will start my doctoral degree.

In summary, September 2015 - May 2019: F1

August 2019 - July 2020: F2 (My spouse started school as F1 from August 2019)

August 2020 -: F1

Filing status for the tax year 2020 and beyond? If being a resident alien from next year, should I file together?

Thanks a LOT!

[pk]

When you change back to F-1, you will not get the exemption any more ( you have used up the only one ). So fro August  you will start counting days towards SPT  ( Substantial Presence Test )  -- so you will still be  NRA on the last day of the year -- you need 183 days.    You could ask to be treated as resident -- first year choice.  But you still will not be able to file with your wife because your wife will still be  NRA.

Do you need more help on this ?

BTW -- which country are you and  your wife from ? -- Sometime the treaty  may allow some relief. 

[grad_student_question]

Thanks again,

So, 2020 is also NRA because I cannot meet SPT? I stayed more than 150 days as F-2 this year, but this doe not count toward SPT when I prepare for 2020 filing?

If I choose to be a resident this year, why can't I file together with my wife? I heard MFJ is an option for a resident alien even if one's spouse is NR- would you able to double-check?

We are both from South Korea, I heard there is a treaty between the countries, but can I claim any relief if I will be treated as a RA going forward?

Thanks!