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Gujjuje
New Member

Should I file for a 1040 NR or 1040? F1 to H1b in October 2018. Married in December 2018 . Spouse entered USA in 2019.

Came to US in 2015 December with F1, got H1B in 2018 October, Married(Out of USA) in 2018 December (Spouse isn't in USA at that time, she entered USA in February 2019). Now Should I file 1040 NR for only me? Or file jointly 1040 with ITIN application form  (W-7) for my spouse? I have already done my tax returns in Turbo Tax with 1040 and got a certified document for tax consultant approved by IRS. I am ready to post. What should I do now? Please help.

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1 Reply
pk
Level 15
Level 15

Should I file for a 1040 NR or 1040? F1 to H1b in October 2018. Married in December 2018 . Spouse entered USA in 2019.

Having come to the USA on F-1 in 2015, means that you would have been an exempt person till end of 2019, were it not for change of status in 2018 Oct.  So your test period starts on date of adjustment.

Thus you would have had to meet the following to be able to exercise first year choice --

(a) you were NOT a resident in 2017,

(b) had been continuously present in USA for at least 31 days in 2018

(c) during the test period you were present in the USA for 75% of the days --- so depending on when you left the USA in Dec 2018 , and how long you stayed away,  you may or may not have met the 75 %  -- there is also a grace period  of not  counting up to 10 days absence.

(d) you would meet the substantial presence test in 2019

So we need more info to comment on this first year choice.


Assuming that you had met the requirements  and you were able to make the first year choice, you still would run into the issue of filing joint because your spouse had not been admitted to the USA. If she had entered and then went  back home and did not come back till 2019, you could still file jointly, with the form W-7 filled out.

My suggestion would be to keep it simple and just file as Non-Resident Alien using form 1040-NR ( TurboTax does not support it --  consult SprinTax, Tax professional or your school foreign student's office ).

Namaste ji

 

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