Newly transitioned F1 to H1B and F2 to H4

[dghosh7]

Hi All,

I have been in the US since Aug 2019 on an F1 visa. I got married in Jan 2022 and my wife accompanied me to the US on an F2 visa in Jan 2022.

Then we transitioned to H1B and H4 on October 2022 and we entered the US in Dec 2022 as H1&H4. (We went back to India from the US between Oct-Dec 2022 to get our visa stamping).

There's no gap in between (just vacation visits to India for a month or two while being on a valid visa)

I had a few questions:

• Do I qualify as a resident alien for tax purposes? Sprintax says you need to file 1040NR though.
• As my wife is on H4, so she has no income here. Does she need to apply for ITIN and subsequently file for taxes jointly? Sprintax doesn't let me file jointly.

Thanks in advance !!

[ErnieS0]

I’m not fully understanding your question. You say you were in the U.S. since Aug. 2019, then you say you entered the U.S. in Dec. 2022. Did you go back to your home country?

If you were in the U.S. since Aug. 2019 on an F1 and then became an H1B in Oct. 2022 then you do not meet the substantial presence test so you will file as a nonresident, as Sprintax.com says. File with Sprintax.com. TurboTax does not support nonresident returns.

Nonresidents cannot file joint returns.

If your wife has no U.S.-connected income then she does not have to file a U.S. tax return.

[dghosh7]

My bad. I edited the original question. 

No, I never went back, but there were some vacations/PTO travels to India; i.e. all on a valid visa. 

So for me, it's F1 -> F1-OPT -> F1-STEM OPT -> H1B (Aug 2019 - Current).

Any my wife's F2 -> H4 (Jan 2022 - Current)

Do they all count towards Substantial Presence? Thanks

@ErnieS0 @SharonD007 @MonikaK1  @TomK2023 @RalphH1 @LindaS5247 
Thanks all 😊 

[dghosh7]

@AbrahamT 

[ErnieS0 · Accepted solution]

An F1 visa is five years exempt so you have no days present in the U.S. until you became H1B. Your original question said you became H1B in October, so you would not meet the substantial presence test and would therefore file as a nonresident, as Sprintax.com said.

The same applies to your wife if she became H4 in October. However since she has no income, she does not have to file a return.

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, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   1. All the days you were present in the current year, and
   2. 1/3 of the days you were present in the first year before the current year, and
   3. 1/6 of the days you were present in the second year before the current year.