H1B and F1 - Married Filing Jointly

[lgs_galo]

Hi,

I'm on H1B and I'm a resident alien for tax purposes. My wife is on F1 doing her OPT (she has been in US under F1 for less than 3 years).

We intend to file jointly, which I understand is possible, based on previous questions discussed in this forum.

I also understand that she's still exempt from FICA taxes even if we file jointly (she did not have FICA taxes withheld in her paychecks, and she has "0" social security wages/medicare wages in her W2 - therefore, TurboTax is only considering my taxable income for FICA purposes in the TurboTax software / prepared forms 1040 and 8959).

My questions are:

1. Do I have the right understanding of the situation and how we should proceed? I.e., we can file jointly and she's still exempt from FICA if we file jointly

2.1 Can we e-file via TurboTax? I have completed everything, and I'm ready to e-file based on the fact that we both have SSN and filed separately last year.

2.2 If not, what do I need to do?

Thanks!!

@ErnieS0 I thought you might be able to clarify based on previous discussions you engaged with. Thank you! Appreciate the help in advance!

https://ttlc.intuit.com/community/taxes/discussion/h1b-and-f1-visa-married-filing-jointly/00/2077033

[LoganathanB]

If you file jointly you elect to treat her as a resident for tax purposes. 

Resident aliens for tax purposes have the same liability for Social Security/Medicare Taxes that US Citizens have.

She will have to pay Social Security and Medicare taxes.

Yes, you can file through TurboTax

[lgs_galo]

Thanks for the reply @LoganathanB! Appreciate the help.

What about this specific paragraph from IRS?

"You and your spouse are treated, for federal income tax purposes, as U.S residents for all tax years that the choice is in effect. However, for Social Security and Medicare tax withholding purposes, the nonresident spouse may still be treated as a nonresident. Refer to Individuals Employed in the U.S. – Social Security Taxes ."

My wife is with less than 5 years under F1 and she does not pass the Substantial Presence test, therefore, she would still be exempt from FICA.  Am I wrong in the interpretation of the paragraph above? Right now I'm assuming that we are following exactly what is written in that paragraph. I completed the TurboTax online process with our W2 information (her W2 does not have FICA withholding and the boxes 3 and 5 are blank) and the generated forms 1040 and 8959 prepared by TurboTax only consider Social Security and Medicare based on my W2. Am I doing anything wrong? Am I missing any form that TurboTax should have generated?

Best,

Luciano

[LoganathanB]

Yes as a nonresident she is exempt from FICA taxes. But you are electing to file as a resident jointly and therefore she is subject to FICA taxes. She will e required to report worldwide income.

Yes, TurboTax carries the numbers entered in the W2 form and it does validate the entries. You are doing it correctly.

[raunak]

When filing jointly F1 visa status becomes a resident alien for tax purposes. IRS document has listed the limitations on exemption clearly.

https://www.irs.gov/individuals/international-taxpayers/aliens-employed-in-the-us-social-security-ta...

• Limitations on exemption:
  • The exemption does not apply to spouses and children in F-2, J-2, or M-2 nonimmigrant status.
  • The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which they were admitted into the United States.
  • The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1 status who change nonimmigrant status to a status which is not exempt or to a special protected status.
  • The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1 status who become resident aliens for tax purposes.

[vg8696]

I find myself in a similar situation and I'm curious whether my spouse, who is on F1 (OPT), and I, on H1B, can still file jointly as married on Turbotax. Can you provide some guidance on this matter? Also, does my spouse would have to pay SS and Medicare taxes if we go this route? What did you end up doing? 

[rtax1]

Did anyone clarify on this situation?

[rtax1]

What did you end up doing?

[Vanessa A]

This is a post from last year, what is your exact question?

[rtax1]

My question is will F1 visa holder be eligible for fica tax exemption if the they file married jointly filing? The H1b holder is already US resident for tax purpose and spouse is in F1 visa. Spouse earned income in 2023 through internships by  in the field which she is graduating in. She earned 1 credit for doing this internship and was optional by school.

I am assuming through us filing joint return I automatically treated her as US resident and her fica exemption does not get covered through below clause from IRS.

Am I interpreting situation correctly that she cannot get refund of FICA? 

IRS website states:

• F-visas, J-visas, M-visas, Q-visas. Nonresident alien students, scholars, professors, teachers, trainees, researchers, and other aliens temporarily present in the United States in F-1,J-1,M-1, or Q-1 nonimmigrant status are exempt from Social Security / Medicare Taxes on wages paid to them for services performed within the United States as long as such services are allowed by the United States Citizenship and Immigration Services (USCIS) for these nonimmigrant statuses, and such services are performed to carry out the purposes for which they were admitted into the United States.
  • Exempt Employment includes:
    • On-campus student employment up to 20 hours a week (40 hours during summer vacations)
    • Off-campus student employment allowed by USCIS
    • Practical Training student employment on or off campus
    • On-campus employment as professor, teacher or researcher
  • Limitations on exemption:
    • The exemption does not apply to spouses and children in F-2, J-2, or M-2 nonimmigrant status.
    • The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which they were admitted into the United States.
    • The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1 status who change nonimmigrant status to a status which is not exempt or to a special protected status.
    • The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1 status who become resident aliens for tax purposes.

[Vanessa A]

You are correct.  If you file a joint return, she is choosing to be treated as a US resident for tax purposes.  If she is treated as a US resident for tax purposes, then the exemption does not apply and she cannot get a refund of her FICA withholdings. 

[shraddhan]

I have a similar question. (I am on H1B and wife is on F1)

If we file jointly does that mean my wife is automatically considered a resident for tax purposes?

OR
I came across this form called 6013g, which mentions on slide 3 here https://www.irs.gov/pub/fatca/int_practice_units/JTO9431_02_09.PDF, that we actually need to fill this form along with our joint returns for my wife to considered a resident. Can somebody confirm whether we need to file 6013g or not?

[DaveF1006]

This year, Turbo Tax is allowing you to declare your ‌non-resident spouse as a resident alien for tax filing purposes. Form 6013G will generate automatically in your return, fulfilling the IRS requirement. 

When you enter the spouses's information in TurboTax, there will be a section where you would select where to declare you wife a non-resident alien.