Can we file jointly if we are on student visas (OPT for my husband) and have lived in the US more than 4 years?

[ymoghad1]

I am on a student visa, and my husband is on F-1 OPT.We have lived in the US for 4.5 years now, and we have not left the country. Also we have been married for 4.5 year.

[Vanessa A]

If one of you are residents for tax purposes, then yes, you could file a joint return and you would both be treated as US Residents for tax purposes.  However, if you have both only been here 5 years, are you residents or non residents. 

If you are non residents, you would need to use Sprintax.com to file your return as TurboTax does not support the 1040NR. 

[ymoghad1]

I don't understand. We pass the criteria for being residents for tax purposes (have lived in the US for the past year, have lived all of the 4.5 years in the US and have not left). So we can now file with turbotax jointly?

[DaveF1006]

It depends. To clarify, do you both have F1 visas and when did you first enter the US?

[ymoghad1]

We first entered the US in december 2017. I am on F-1 and my husband is on F-1 OPT.

[LoganathanB]

You become a resident alien after five calendar years on an F1 visa.

Both of you came to the USA in 2017 and you completed five calendar years in 2021.

You can start filing jointly as a resident from 2022 onwards.

[ymoghad1]

So we were not allowed to file this year? for 2021? But in the criteria for substantial presence it says:

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.

This is on the IRS website.

[LoganathanB]

Unfortunately no. You are considered a nonresident alien during the first five calendar years on an F1 visa.

You will become a resident in 2022 if you satisfy a substantial presence in the year 2022.

You can not count the days present in the USA as a nonresident for calculating the substantial presence test.

Click on the link for more information

Residency Status