Tax filing status for H1B visa holder, married but spouse is in Inida.


I am a citizen of India. Working in US in H1B visa. I started working here from September, 2012. I am married in April, 2008. But my spouse and kid did not visit US before and do not have any US identification like SSN/TIN. My wife is working in India and is paying income tax in India.

I want to file tax returns for 2012. What should be my filing status "Single", "Married filing separately", or "Married filing jointly"
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    If you came to the US in September 2012 (or any other day after July 1st), you are a non-resident alien as you do not meet the substantial presence test.
    As a non-resident alien you cannot file as married filing jointly. You would file form 1040NR or 1040NR-EZ as married filing separately. turbotax does not support these forms.

    However, since you are married, you have some other options.
    You can wait until you meet the substantial presence test in 2013. Then you can apply the so-called first year choice which would allow you to be treated as residnet alien starting the day you entered the US. That would make you a dual status alien.
    However, since you are a residnet alien towards the end of the year using this choice, you can then choose to be treated as resident alien for the entire year together with your spouse and you will need to file as married filing jointly.
    If you choose to do this, you need to add a statement to your return making these choices.
    You will also have to report worldwide income for both of you for the entire year. Your wife might be able to use the foreign earned income esclusion and you can also use the foreign paid tax credit and your foreign income and any non-escluded income form your spouse.
    You will  have to apply for an ITIN for your wife in this case.
    You would not be able to claim your child as the child would have had to spend some time with you in the US.

    • Thanks. How long I need to wait to apply for First Year Choice? To meet substantial presence test in 2013, I need to wait till July first week. Is there any last date for the filing? If it is before July, how can I wait until I meet the presence test.

      Which form I need to use for filing, 1040/1040EZ ? And is there any mention about the 'First Year Choice' in the form

      Also Can I use turbo tax for this purpose?
    • for the substantial presence test you would count days of presence in 2013 plus 1/3 of days in 2012. If its going to be after April 15th file an extension and pay any taxes owed by April 15th.
      You can then prepare your return with Turbotax, but you will need to file on paper and add a statement making the first year choice and the choice to be treated as resident aliens.
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    Looks like you should be filing as 'Married Filing Jointly'. This post should answer your question: https://ttlc.intuit.com/questions/1500875-i-m-married-but-my-wife-lives-in-my-original-country-i-hol...

    Some additional details are provided here: https://ttlc.intuit.com/questions/1496143-my-spouse-is-a-foriegnor-and-i-have-been-sending-her-suppo... 
    • this answer is incomplete and missing important information about filing for non-resident aliens
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