Non Resident Alien or Resident Alien ?

[manojamk]

I am in the US Since Aug 2017.

On F1 Visa: Aug 2017 - September 2019
On H1B Visa: 1st October 2019 to 2022. 
I am present in the US for the whole of 2020 and 2021.

• For 2019 tax return, should I be filing 1040NR or 1040?

In 2019 December, I got married. My spouse came to the US on 30th Dec 2019 on H4 Visa.

As of now, I have filed 1040-NR-EZ(Married Non-resident alien), should I amend my tax return to 1040? So that  I can claim my spouse as my dependent and get 24400 as a standard deduction. 

Should I be making a First-year choice and Nonresident Spouse Treated as a Resident?
In that case, should I pay FICA for the whole 2019 tax year?

[pk · Accepted solution]

@manojamk , 

1. since you came to the USA with F-1 in 2017 ( and assuming that this was your first US visit ), you are exempt  from counting days present through 12/31/2021.

2. During this period and assuming no adjustment of status , your earnings are reported  to the IRS on form 1040-NR along with its rules about deduction ( itemized )  and filing status  ( single/married ) and generally not liable for FICA;

3.  On visa change to H-1B on 10/1/2019, your exemption status expired and you started counting days present in the USA towards Substantial Presence Test ( SPT);  Noting here  that  in 2019,   (a) you had 92 days presence  ( required  at least 31 days; (b) 100% of the  days available  in the test period; (c)  you would meet the SPT in the following year ; and (d) you were not currently or recently  been a Resident for Tax purposes:   thus making you eligible to assert first year choice to be treated as resident for tax purposes ofr the whole year. So you can amend your 2019  return to  request exercise of first year choice .

4. Your wife on the other hand , while on a dependent visa  still has to meet her own SPT requirements.  In her case the test period is  from the day of admission till the =end of the year - in this period  while she meets all the  requirements except the  31 days presence  in the current  year.

Is there more I can do for you ?

Namaste

pk

[manojamk]

Thanks, @pk for your response.

As I have filed 1040NR(Married Non-resident Alien) for 2019 tax returns, I did not get the standard deduction of 24400, also my wife did not have ITIN at that time.

My wife got her ITIN in 2021.

While amending my 2019 tax return to 1040 (Resident) and Married Filing Jointly.  Can I claim the standard deduction of 24400?
Provided my wife was present in the US for only 2 days in 2019? (Nonresident Spouse Treated as a Resident)
She is in the US from 12/30/2019 to 2021

Namaste _/|_ 🙂

[pk · Accepted solution]

@manojamk ,   The issue about your wife being a US resident and therefore being able to file jointly is complicated by the fact  that all the rules and articulation by the IRS is  for a Non-Resident Alien to be treated as a resident for tax purposes,  the alien has to be married to a US person  ( Citizen/Resident--Green Card / Resident for tax purposes )-- what is not clear here is what does "married to  a US person mean " --- the cause of this is because  at the time of filing the original 2019 return and at the end of the 2019 , while you were married  but you were a Non-Resident Alien.  However, once you amend your return, you will be retrospectively considered  a Resident for Tax purposes. Thus the question becomes whether your wife can still be considered married to a US Person ( Resident for Tax purposes ) retrospectively.  I suspect that  IRS generally will accept that the contention that your wife is indeed married to a US person ( Resident for Tax purposes ( with retrospective request via amended return ) and  hence you should consider   amending your  2019 return as Married Fling Joint -- include  her  world income for 2019 as US taxable income -- and include the  "first year choice" and  "alien to be treated as a resident for tax purposes "  paperwork.  If IRS  refuses   then  you could ask them to cite regulation which disallows this and go on from there.

Namaste ji

pk

[manojamk]

Thank you so much for your response 🙂 @pk