Do I need to amend my taxes as my wife was on F1 and I'm on H1B

[sivaram9]

Hello,

Since 2018, I'm currently on H1B visa. I got married in December 2021, and my wife came to the U.S. in the same month on F1 Visa. Since then, I’ve been filing our taxes jointly using Form 1040 electronically. My wife was on an F1 visa from December 2021 until November 2024, and she recently switched to an H4 visa. I have been on an H1B visa throughout this period.

Given these circumstances, do I need to amend my taxes after my marriage? If so, in which years should I consider amending our tax returns? Any advice would be greatly appreciated!

[DaveF1006]

If your wife was on an F1 visa during 2021 (until November 2021), she would generally be considered a non-resident alien for tax purposes, unless you made a special election for her to be treated as a resident alien for tax purposes.

If you did not elect for her to be treated as a resident, then you should have filed separately as Married Filing Separately or Married Filing Jointly only if you made the election for her to be treated as a resident. Without this election, your joint filing might not be appropriate for the 2021 tax year.

Since you filed jointly, you might need to amend your 2021 tax return (Form 1040X) if your wife should have been considered a non-resident alien, unless you made the election to treat her as a resident. If you did not make the election, filing jointly in 2021 might have been incorrect.

Did you make the election in 2021 for her to be treated as a resident?

[sivaram9]

Hi @DaveF1006 ,

Thank you so much for your detailed response. I forgot to mention that my spouse wasn’t on any visa before Dec 2021. She received her F1 visa in Dec 2021 and was out of the country until then. I filed as Married Filing Jointly in 2022, but I’m unsure if I made the election for her to be treated as a resident. Could you please guide me on where to find this information in my filed documents?

Additionally, do I need to amend my subsequent tax years as well?

[DaveF1006 · Accepted solution]

It depends. There was a process you would have had to go through to be able to file married filing jointly in 2021. Here is the process that needed to be performed. Once you completed your return, you would have needed to do the following.

1. Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident, and you are choosing to both be treated as US residents for the tax year.
2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse.   

I assume that your spouse had a Social Security Number already and this allowed you to electronically file the return. If you did go through the process that I outlined above, you should have a hard copy of the return with the statement you prepared. if you don't have the statement, you did not make that first year election. If you didn't make the election, you will need to amend the 2021 return and file Married filing Separately.

If your spouse remained in  the US for all of 2022, 2023, and 2024, you will not need to amend your returns because your wife would have satisfied the substantial presence test for those years.