Married - Both Non-Residents - 1040 NR (forced to married filing separately) resolution.

[ankurjoshi16]

I and my spouse both were on F-1 (OPT) in 2016. Due to non-resident status, we have to file 1040 NR which doesn't allow us to file as 'married filing jointly'. We can choose 1040 NR with 'married filing separately' which results in a big loss. Can we waive our exemption from presence test and file as residents (married filing jointly)?

[bine22 · Accepted solution]

No, if you are both in the US less than 5 calendar years, you have to file form 1040NR or 1040NR-EZ plus 8843 as married filing separately.

[ankurjoshi16]

okay, is there any way for us to avoid penalty of married filling separately ?

[bine22]

First, you cannot use Turbotax. Taxes might be higher for filing separately, but it is what it is. You might be able to claim a tax treaty depending where you are from.