Married filing jointly when changing from F1 to H1B

Forum|Forum|3 years ago
March 26, 2023
1 reply
0 views

Hey.

Here are our basic info.

1. My husband and I entered US since Aug, 2019 with F1 status. We got married in June, 2022

2. My husband was in F1 status throughout 2022

3. I was in F1(OPT) from Jan 1 to Sep 31. I transferred to H1B status since Oct 1.

Based on some similar questions in the forum, we currently plan to

1. Mail the extension(Form 4868) now and plan to actually file my tax around beginning of June.

2. Fill in the first year choice statement so that I could be a resident starting form Oct 1

3. Fill in another statement for my husband so that we could both treated as resident and file by married jointly ( This will benefit most due to salary difference)

Are the above steps feasible? If yes, I currently have the following questions

1. When filing married jointly, are we allowed to use the standard deduction as suggested by TurboTax deluxe? Or we could only use itemized deduction?

2. When we filed the tax for 2021, we both filed form 8833 with treaty 20(c) for 5000$ since we were in F1 status throughout the year and are students from China. If we file married jointly, could any of us continue to use that treaty this year?

Thanks a lot in advance!

E

ErnieS0

Yes, all your steps as feasible and as a U.S. tax resident you can use the standard deduction.

You meet the first-year choice because:

You were present in the U.S. for at least 31 days in a row in the current year (202w), and

You will be present in the U.S. for at least 75% of the number of days following the 31-day period, beginning with the first day of the 31-day period and ending with the last day of the current year (2022).

See Tax Residency Status – First-Year Choice.

U.S. residents can elect to file jointly with a nonresident spouse.

See Nonresident Spouse

The IRS says you can continue to claim a treaty exemption:

Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under the Internal Revenue Code, a student may become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, the treaty allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States.

See: Resident Alien Claiming a Treaty Exemption for a Scholarship or Fellowship

**Say "Thanks" by clicking the thumb icon in a post**Mark the post that answers your question by clicking on "Mark as Best Answer"