Which tax forms to use while adjustment of status is pending

[texanspider 1]

I came to the US on an F1 visa. I got married in 08/17 and filed for AoS in 11/17 (My wife is a US citizen). Both my wife and I have been working all these years.

I received an EAD and Advanced Parole in 12/17.

I traveled abroad and got a PAROLED stamp on my passport on my return to the country because my AoS was pending.

 

My understanding is that currently I do not have a status (even though the F1 visa on my passport is unexpired) because I have the PAROLED stamp in my passport switching my status from F1 to 'no-status'.

 

My AoS is still pending, and I have sent a follow up to USCIS since it is outside processing time.

 

In the past I have used tax prep software that was provided by our university. The forms used were Form 1040-NR and Form 8843.

The forms need to be physically mailed in, and couldn't be filed online.

My question now is:

1. Which tax forms I would use to file this year?
2. Should I jointly file with my wife? If so what status would I say I am?

 

Thanks for your help!

[s0913191 0]

MFJ (Married Filing Jointly) is usually the most beneficial one with greater amount of standard deduction and a wide variety of deductions and credits. There is usually zero economic benefit with filing MFS (Married Filing Separately). However, in order to file MFJ, you have to be a resident for tax purposes.

 

In order to be treated as a resident for tax purposes, you have to pass either "the green card test" or "the substantial presence test". My understanding is your EAD+AP still do not constitute the specification of the green card test. And you were an exempt individual as a student, which means your presence in the United States on F-1 is not counted as days in the U.S.. Even if days after Dec 17 have to be counted, you still do not meet the substantial presence test.

 

So I would say you're still a nonresident alien. However, you can choose to be treated as a resident alien and file MFJ. Look at the link 3 and 4. You should attach a statement.

 

1. https://www.irs.gov/individuals/international-taxpayers/alien-residency-green-card-test

2. https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

3. https://ttlc.intuit.com/questions/3894147-can-us-citizen-married-to-f-1-student-file-jointly

4. https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

[duitta2g15 26]

Since you married and going through the immigration process, it would a plus if you file with “married filing jointly”.