My self H1b visa, kids( has SSN-us born ) & wife ( H4 visa) not in usa for 180 days. Can add them as dependents in Tax returns ?

[hughblake9]

 I am on H1B visa status and saying in USA from last 5+ year. My wife staying with in usa from last 3+ years on H4 and i have two kids US born. Current year my wife and kids went to out of country more than 180 days. Can I include them in my Tax return as dependents( My wife has ITIN and kids has SSN)

[KarenJ · Accepted solution]

Yes, you can file a married filing jointly tax return and claim your children as dependents.  They are US citizens and lived with a parent all year.

To determine if your wife is a resident for US tax purposes, please use the substantial presence test below to see if she qualifies.  If the total US days for the last 3 years equal 183 or more, then she is a tax resident.

You will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:

1. 31 days during the current year (2018), 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 (2018), and
• 1/3 of the days you were present in the first year before the current year (2017), and
• 1/6 of the days you were present in the second year before the current year (2016).

If she is a nonresident, you both can make an election to file a married filing jointly tax return.  Please see Publication 519, page 9, Nonresident Spouse Treated as a Resident.

Publication 519