Question

EU citizen, married to US spouse, was on an F1 visa and filed US tax returns 2010-15, left US, 2018 back on H1B visa. Can I file as resident status married separately?

Forum|Forum|7 years ago
June 4, 2019
1 reply
0 views

EU citizen

2010: entered US as F1 student

2014: got married to US spouse, filed first joint tax return

2015: second joint tax return, left US to live&work in Europe

2016/17: life in Europe

2018: entered US on non-resident H1B visa

Question: I know we could file a joint 1040 but can we also both file separate 1040, or would I have non-resident status for tax purposes in that case and have to file 1040-NR (i.e. no standard deduction). The reason I ask is because after five years as F1 student, one can automatically file as resident for tax purposes and I filed 6 years as a student.

TurboTax Free Edition iOS

PopeyeTheSalior

Employee

Yes, you can file Married Filing Separately.

Since you have passed the five years not counting days period as a nonresident (2010-2014), starting from January 1, 2015, as long as you stay within the US for more than 183 days or meet the Substantial Presence Test SPT, you are considered as a US resident for tax purposes. Therefore, in 2018, as an H-1B visa, the same rule applies to you. If you pass SPT, you will be a resident in 2018. However, if you did not stay in the US for more than 183 days, your US spouse can file a statement to treat you as a resident. See Nonresident to resident.

As a resident, you can file Married Filing Separately on the Form 1040. You do not have to file the Form 1040NR.