F-1 to H1B Married Filling Jointly

@pk ?

@Anonymous  In the scenario that you describe ,  assuming that there are no treaty ( which country  are you two from ? ) assertions you can make and that the  earning amounts are much higher than you show  ( else it is not worthwhile ), the following may allow you to reach your goal  of filing jointly  and the benefits  therein:

1. Make the first year choice to be treated as a resident. This requires for you to prepare your return  as resident  jointly  and  include a statement requesting that you both would to be treated as a resident for the year 2022 --- the year will begin on the first day that you were present in the tax year. The request needs to show that :

         (a) you were not a resident in 2021

         (b) that you have been present in the USA  at least 31 days  by 12/31/2022

         (c) that you have been present in the USA for at least 75% of the days in the test period of H1-B entry through the end of the year

         (d) that you will be resident for tax purposes during the first quarter of 2023 -- you cannot file your return before meeting the  SPT

You each need to sign the request  statement.

This will negate the need to file as dual status -- dual status does not allow for use of standard  deduction ( which is what you are after ? ) You file one return covering the whole year  ( I am assuming here that you have had no other income from any other sources  ( i.e. your world income is the same as your US sourced income

These items also apply to your spouse.

Also because you were on CPT/OPT, there is no FICA for the period before H1-B.

Does this answer your query ?

Is there more I can do for you ?

pk

@pk ,

Thank you for the response.

I am from Colombia, so there is no treaty that I'm aware of and indeed, my earnings will be higher than the example. 

I'm a bit confused. So from what you're saying if I prepare the first-year choice statement to be treated as a resident filing jointly, I would not need to use Sprintax and I would be able to file ALL of 2022 as married filing jointly with TurboTax? I thought I would only be considered a resident from July 1. and non-resident before that (for 2022)

My entire income from 2022 was earned in the US (while on OPT and H1B) and my wife had no income for the year so that would definitely be the best choice in terms of deductions.

Also if I understand correctly I will be in the US for 179  days in 2022 (under H1B) so I just need to wait until the first few days of January 2023 to meet the SPT (183 days) right?

Again thank you for the help.

Best,

Sebastian.

@Anonymous , generally your understanding is correct , except for the following  ( and this is a correction on my earlier statements ( above).

1.  for purposes of the first year choice, the term always used is "resident for the year ". However , the definition of  when the year begins  is not always clear . In most cases it is the first full day that you are present in the  US for any reason.

2. In your case , it usually is the  earliest  31 day test period  -- if you are present say from Jun 1st  through Aug 15th , left USA  thereafter and  came back in Sept for the rest of the  -- You could use two test period to meet your  31 day  ( stayed here for at least 31 days) and usually  your start of the tax year for "resident would be  June 1st  till the end of the year.

3. In your case I also erroneously assumed  that the five year exempt status  was somewhat malleable in that  you as the beneficiary  can choose to use it  or ignore it if it to your advantage.   In this last  I was WRONG.  I did a lot of search to find if the  use of exempt status  was mandatory  i.e. did they use  "may / can / should " etc. or"must, shall "etc.  Well to my horror  ( and surprise  ) the term used  in 26CFR 301.7701 the term used is  "shall be excluded  and will not count ".   referring to the days  an exempt  person is present  in the united states.

4. Why is this important ?  It is because I assumed  that you could start your resident yer from 1st of Jan  ( as it is to your advantage for use of "standard  deduction " for joint filing.  Since 3. above clearly says you do not have a choice in counting or ignoring  the exempt status, that avenue is blocked. Thus even when filing jointly , you do not get to use the standard deduction ( even though there is no reference to this  ) because you will be treated as dual status person and therefore itemized deduction  is the only path forward.

I apologize  for my error ( and I learnt something out of this exercise -- thank you )

adios

pk

@pk @Anonymous_ I've been going through the community topics and I am a bit confused as your answer contradicts other experts.

Without counting days in the US while on F1,  Starting H1B on July 8th, 2022, I was in the US for 179 days that year. While that is not enough for the SPT  I could wait until I pass the SPT in 2023 by counting 1/3 of the days from 2022 + days in 2023. Passing the 183 days by May of 2023 (would have to file an extension fo file)

After I have passed the SPT in 2023  I would be able to make the first-year choice + File jointly with my H4 spouse, which will make me a resident for the entirety of 2022 and thus be able to file a regular 1040 with TurboTax, which I would then need to print and submit with the First year choice + filing jointly statement.

That is what I have gathered from other community answers. Am I missing something?

Thank you for your help!