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thegoprogrammer
New Member

What is the procedure for opting for the First Year choice method and filing taxes as Resident alien (married filing jointly)?

I received my H1B on October 1, 2017 and my wife is on H4 visa. As I wanted to opt for the First Yr choice method, I filed for an extension in April, 2018 as I was unable to satisfy the Substantial Presence test. Now, I have satisfied the SBT.

2 Replies
pk
Level 13
Level 13

What is the procedure for opting for the First Year choice method and filing taxes as Resident alien (married filing jointly)?

Here is an excerpt from the  IRS:

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other is a nonresident alien, you can choose to treat the nonresident as a U.S. resident. This includes situations in which one of you is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other is a nonresident alien at the end of the year.

If you and your nonresident alien spouse do not make the election to treat your nonresident alien spouse as a U.S. resident alien, you may be able to use head of household filing status. To use this status, you must pay more than half the cost of maintaining a household for certain dependents or relatives other than your nonresident alien spouse. For more information, see Publication 501, Exemptions, Standard Deduction, and Filing Information.

Election to File Joint Return

If you make this choice, the following rules apply:

  • You and your spouse are treated, for federal income tax purposes, as residents for all tax years that the choice is in effect. However, for Social Security and Medicare tax withholding purposes, the nonresident alien may still be treated as a nonresident alien. Refer to Aliens Employed in the U.S. – Social Security Taxes.
  • You must file a joint income tax return for the year you make the choice (but you and your spouse can file joint or separate returns in later years).
  • Each spouse must report his or her entire worldwide income for the year you make the choice and for all later years, unless the choice is ended or suspended.
  • Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect. However, the exception to the saving clause of a particular tax treaty might allow a resident alien to claim a tax treaty benefit on certain specified income.


This does require your non-resident spouse to have an ITIN and if not  -- you can still file  jointly and include an application for ITIN -- Form W-9 , and include all the  required documents. This will force human intervention and issuance of ITIN retroactively for the year 2017.

Rajshree7
Level 2

What is the procedure for opting for the First Year choice method and filing taxes as Resident alien (married filing jointly)?

Hi @thegoprogrammer, we are in the same situation for 2019 tax. As you became resident for the whole year for tax purpose did you have to pay Medicare and Social Security Taxes on your income from Jan 1 to Sept 30? according to Aliens-employed-in-the-us-social-security-taxes resident aliens are not exempted from Social Security and Medicare Taxes as follows, 'The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1/Q-2 status who become resident aliens for tax purposes.'

 

How did you file this tax, can you recommend some consultant please.

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