First Year Choice for non residence Alien

[Alwani]

File as nonresident alien using first-year choice?

I'm in the US on F-1 since September 30 2016. My spouse entered US in Aug 2016 on B1/B2 with my 3 children. On Dec 2016, I changed them B1/B2 to F-2. As per rules they cannot work on that. During all period from Oct 10 2017-Dec 09 2019 I worked on CPT and then OPT.

On Dec 10, 2019 I was approved for H1B

Though all my income showing on W2 based on F1 rules, I requested a change from my employer and they are making new amended W2.

Recently I approached by some tax company and all of them recommended me of first year choice.

I am from Pakistan and wanted to know under any condition if I am eligible for this, if so can I use Turbo tax and will they help me preparing all these?

I do not meet the green card test or substantial presence test for 2019. Hence if I were to file 1040NR, I see the following disadvantages:

- cannot file jointly
- cannot claim spouse as exemption 

- cannot claim children (1 child is US born in 2014)

But I recently read about First-Year Choice (Pub. 519) and I think both of us may qualify to elect as dual-status aliens, and elect to be treated as resident-aliens for entire year of 2017. This is how:

- We were present for at least 31 days in a row in 2017 (October 1st 2017 till Dec 31st 2017)

- We were present for more than 75% of the remaining period (Oct 1 - Dec 31 2017)

- And we may qualify for Substantial Presence Test in 2018 (may not be by April deadline)

- I have all depended SSN (as recently also approve for I-140)

[Alwani]

I'm in the US on F-1 since September 30 2016. My spouse entered US in Aug 2016 on B1/B2 with my 3 children. On Dec 2016, I changed them B1/B2 to F-2. As per rules they cannot work on that. During all period from Oct 10 2017-Dec 09 2019 I worked on CPT and then OPT.

On Dec 10, 2019 I was approved for H1B

Though all my income showing on W2 based on F1 rules, I requested a change from my employer and they are making new amended W2.

Recently I approached by some tax company and all of them recommended me of first year choice.

I am from Pakistan and wanted to know under any condition if I am eligible for this, if so can I use Turbo tax and will they help me preparing all these?

I do not meet the green card test or substantial presence test for 2019. Hence if I were to file 1040NR, I see the following disadvantages:

- cannot file jointly
- cannot claim spouse as exemption 

- cannot claim children (1 child is US born in 2014)

But I recently read about First-Year Choice (Pub. 519) and I think both of us may qualify to elect as dual-status aliens, and elect to be treated as resident-aliens for entire year of 2017. This is how:

- We were present for at least 31 days in a row in 2017 (October 1st 2017 till Dec 31st 2017)

- We were present for more than 75% of the remaining period (Oct 1 - Dec 31 2017)

- And we may qualify for Substantial Presence Test in 2018 (may not be by April deadline)

- I have all depended SSN (as recently also approve for I-140)

[KarenJ2]

As you have been in the US on an F-1 visa for less than 5 years or part years, you are a nonresident alien. Starting December 10, you can start counting your US days of presence.  As you were in the US less than 183 days in 2019 using the substantial presence test, you are a nonresident for 2019.

As your spouse is also on an F visa she is a nonresident.

You cannot elect to file married filing jointly if you both were nonresidents for 2019.

Your Substantial Presence Test:

1. Number of nonexempt days of presence in the US in 2019 =21 days
2. Number of nonexempt days of presence in the US in 2018=0
3. Number of nonexempt days of presence in the US in 2017=0

[Alwani]

Thank Karen,

How about first year choice?

I know I do not fit on substantial test

[KarenJ2]

You cannot count exempt days for the first year choice.

When counting the days of presence in (1) and (2) above, do not count the days you were in the United States under any of the exceptions discussed earlier under Days of Presence in the United States. 

See page 4 and page 8 in Publication 519.

Were you on an f1 visa until December 10, 2019?  If so you are a nonresident for 2019.