F1 students with U.S child

[xua1]

Hello, 
Me and my spouse are F1 students, we have a U.S baby. we didn't leave the us since we entered on April 2021. Can we claim the baby as dependent? Should we fill the tax as resident or nonresident? Also, Should we fill as married jointly or separately? 

Thank you so much.

[DaveF1006 · Accepted solution]

No., you would not be able to file as a resident until your 5-year exemption period has ended. You will need to file your return as a 1040 NR and each would need to file Married Filing Separately according to 1040 NR instructions.

Also, you cannot claim your child as a dependent unless you are  U.S. nationals and residents of Canada and Mexico. Residents of South Korea and students or business apprentices from India who are eligible for the benefits of Article 21(2) of the United States–India Income Tax Treaty may claim dependents on the more limited terms described in chapter 5 of Pub. 519. No other person filing a Form 1040-NR can claim a qualifying dependent.

Turbo Tax does not file 1040 NR returns but our affiliate at Sprint Tax does.  Contact them here to file your NR return.

[xua1]

Thank you for your detailed answer. Much appreciated.