Do I need to amend my taxes as my wife was on F1 and I'm on H1B

[sivaram9]

Hello,

Since 2018, I'm currently on H1B visa. I got married in December 2021, and my wife came to the U.S. in the same month on F1 Visa. Since then, I’ve been filing our taxes jointly using Form 1040 electronically. My wife was on an F1 visa from December 2021 until November 2024, and she recently switched to an H4 visa. I have been on an H1B visa throughout this period.

Given these circumstances, do I need to amend my taxes after my marriage? If so, in which years should I consider amending our tax returns? Any advice would be greatly appreciated!

[DaveF1006]

If your wife was on an F1 visa during 2021 (until November 2021), she would generally be considered a non-resident alien for tax purposes, unless you made a special election for her to be treated as a resident alien for tax purposes.

If you did not elect for her to be treated as a resident, then you should have filed separately as Married Filing Separately or Married Filing Jointly only if you made the election for her to be treated as a resident. Without this election, your joint filing might not be appropriate for the 2021 tax year.

Since you filed jointly, you might need to amend your 2021 tax return (Form 1040X) if your wife should have been considered a non-resident alien, unless you made the election to treat her as a resident. If you did not make the election, filing jointly in 2021 might have been incorrect.

Did you make the election in 2021 for her to be treated as a resident?

[sivaram9]

Hi @DaveF1006 ,

Thank you so much for your detailed response. I forgot to mention that my spouse wasn’t on any visa before Dec 2021. She received her F1 visa in Dec 2021 and was out of the country until then. I filed as Married Filing Jointly in 2022, but I’m unsure if I made the election for her to be treated as a resident. Could you please guide me on where to find this information in my filed documents?

Additionally, do I need to amend my subsequent tax years as well?

[DaveF1006 · Accepted solution]

It depends. There was a process you would have had to go through to be able to file married filing jointly in 2021. Here is the process that needed to be performed. Once you completed your return, you would have needed to do the following.

1. Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident, and you are choosing to both be treated as US residents for the tax year.
2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse.   

I assume that your spouse had a Social Security Number already and this allowed you to electronically file the return. If you did go through the process that I outlined above, you should have a hard copy of the return with the statement you prepared. if you don't have the statement, you did not make that first year election. If you didn't make the election, you will need to amend the 2021 return and file Married filing Separately.

If your spouse remained in  the US for all of 2022, 2023, and 2024, you will not need to amend your returns because your wife would have satisfied the substantial presence test for those years.

[Bhuvan]

• I have a very similar question to this. I have been on an F1 VISA since August 2019.  I got married in November 2023 to a US Citizen. So I was considered married for the 2023 Tax year. I filed Married Filed Jointly, but did not attach that signed statement you previously mentioned since we e-filed. I have been in the US for the last 6 years but on an F1 so am unsure if I passed the Substantial presence test in 2023, being an exempt individual. 
  
  

What are my options here? Should I amend with the 2023 return with a 1040-X and attach the statement? Or will that not work?

Thank you!

[DaveF1006]

Yes, I would amend your 2023 return and attach the signed statement since you were exempt in 2023. In this case, your husband would declare you as a resident alien for tax reporting purposes. Normally to declare yourself exempt, you would need to file form 8843 to declare your exempt status.

This is an interesting scenario though. My question is how were you able to file since you were an exempt individual?  If you didn't file a Form 8843 with the IRS to declare your exempt status, then you became a US resident via the "Substantial Presense Test" because you were here for the full year in 2023. If this is the case, you don't need to amend your return and it was filed correctly.

If you did submit form 8843 in 2023, then you will need to amend the 2023 return, include the statement, and print and mail the tax return.,

[Bhuvan]

Thank you for your prompt response, I really appreciate it! I’m sorry but all the wording around 8843, substantial presence test, and being exempt is quite confusing to me, but I will try my best to explain my scenario.

I did NOT file an 8843 with the 2023 return, but I DID for previous years. I have been using the 1040NR + 8843 to file taxes before 2023. But when I got married in Nov 2023, I filed form 1040 only (without the signed statement).

So in this scenario, do I still pass the substantial presence test when I submitted an 8843 in 2022 and 2021? I have been on an F1 Visa and graduated in 2023.

If yes, then I don’t need to amend anything.

If no, then I need to mail the 1040-X and the signed statement to amend my 2023 taxes?

Please correct me if I’m wrong.

Again, sorry for all the confusion and thank you so much for your time!