Should I file as resident alien or non resident alien

[Mod1988]

I am on J1 visa as physician alien from July 2013, my wife is on J2 visa and she is not doing any work, my son is citizen and he was born in August 2016. For the last 3 years I used to file my tax return as non resident alien (married filing separately). This year I noticed that if I can be considered as resident alien and so I file as married filing jointly with my son as dependent I will be able to get a lot more tax return. My question can I file as resident alien  or I still considered non resident alien?.

[bine22 · Accepted solution]

On a J1 visa as a non-student you are a nonresident alien for the first 2 calendar years, so 2013 and 2014. After that you use the substantial presence test to determine residency status. So generally, if you were in the US the entire time, you most likely were a resident alien already for 2015 and will need to amend your return. 

So for 2016 you can file as resident aliens, jointly and claiming your son.

[Mod1988]

I will do that this year. Because for last year the people who did my tax said it is better to be on the safe side and filed as non resident alien.

[bine22]

Who did your taxes last year? Saying "to be on the safe side" is a sign, that they did not know what there were doing. Either the return is right or its wrong. If its wrong, it needs to be amended. The rules are clear. Were you outside US in 2015? When exactly?

[Mod1988]

I went outside the US for 2 weeks that's it. It was a well known tax office. I end up paying 1500$ as I filed married filing separately.

[bine22]

I strongly recommend to amend that return. You will be eligible for the standard deduction for married filing jointly, the personal exemption of your spouse. You can buy the desktop version of Turbotax and prepare the correct return, but you would need to add form 1040X manually. You will probably get all that money back, if not more.

[bine22]

Or go back to that tax office and either have them amend the return for you or demand a refund of what you paid them

[Mod1988]

I will check with the office but I dont think they will agree as they said there is no way to file as married filing jointly. So most likely I will amend the return with turbotax. Thanks

[Mod1988]

But if the amend was wrong will I be in trouble

[fr-magaly]

Yes, you will be in trouble. Rules are more than clear:

On a J1 visa as a non-student you are a nonresident alien for the first 2 calendar years.

In your case year 2013 and 2014. Usually is always better to file jointly unless your wife was outside of the U.S making a lot of money, because her worldwide income is taxable, but she was unemployed so you should had file jointly to maximize your return. I will definitely go and talk with that company.

[Mod1988]

Thanks for the reply, just waiting for my new W-2 and then I will file my tax and amend 2015. Can I do that with turbo tax

[roshanth01]

I am a resident physician on J1 visa, with my wife in J2 dependent visa in the US since June 2017. On tax return of 2017, I filed as a resident alien, with filing status as married filing jointly. But then I realized later, that for the first 2 years as J1, I should be filing as a nonresident alien. what should I do now for year 2017? And should I file as nonresident alien or resident alien the next year?