How can I file jointly as an F1 married to a US citizen

[Rocio0010 5,571]

33 minutes ago, Kaykay1 said:

I want to know if anyone has gone through my exact situation and filed jointly through turbo tax without any issues. 

Yes, me, in 2020 when I was filing my 2019 taxes, I was on an F1, married, but still not a permanent resident for immigration purposes.  And we used Liberty Tax, which is essentially the same, with no issues.

[Rocio0010 5,571]

2 minutes ago, Mike E said:

I’m sure OP has had an address in the U.S. since 2021. That doesn’t mean OP has the physical presence. 

If she is an F1 student then most likely she was able to maintain her status by being physically present in the US.

[Mike E 11,725]

Just now, Rocio0010 said:

If she is an F1 student then most likely she was able to maintain her status by being physically present in the US.

I agree it is likely. 
 

 

[Kaykay1 0]

38 minutes ago, Mike E said:

I’m sure OP has had an address in the U.S. since 2021. That doesn’t mean OP has the physical presence. 

I’ve maintained same address in the US since 2021 and have never left the US. However they consider F1 visa status as exempt from using that 183 day rule and I’m quite concerned. 
 

however I have pending AOS application but have EAD and SSN and pay all my taxes: Medicare, SS, state and federal. 

[Crazy Cat 39,404]

2 minutes ago, Kaykay1 said:

I’ve maintained same address in the US since 2021 and have never left the US. However they consider F1 visa status as exempt from using that 183 day rule and I’m quite concerned. 
 

however I have pending AOS application but have EAD and SSN and pay all my taxes: Medicare, SS, state and federal. 

You are not exempt from filing taxes.  If you were married as of 12/31/2022, you can file a joint return with your spouse.  

[Mike E 11,725]

45 minutes ago, Kaykay1 said:

I’ve maintained same address in the US since 2021 and have never left the US.

So you meet the substantial presence test. 
 

 

Quote

 

However they consider F1 visa status as exempt from using that 183 day rule and I’m quite concerned. 
 

however I have pending AOS application but have EAD and SSN and pay all my taxes: Medicare, SS, state and federal. 

This is my take:

 

https://www.irs.gov/individuals/international-taxpayers/exempt-individual-who-is-a-student

When a Student is Not Exempt

You will not be an exempt individual as a student if you have been exempt as a teacher, trainee, student, Exchange Visitor, or Cultural Exchange Visitor on an "F, " "J, " "M, " or "Q " visa for any part of more than 5 calendar years, unless you establish to the satisfaction of the IRS that you do not intend to reside permanently in the United States

 

While you are correct F-1 is a single intent non immigrant status normally exempt from the substantial presence test, you did however file I-485. So it is impossible for you to establish that you do not intend to reside permanently here.  
 

So for tax purposes

 

* your I-485 broke your exemption from the substantial presence test 

* you are a resident alien  

* there is no election to declare yourself a resident alien; it is involuntary 

 

Since there is no election there is no way to submit a statement that you are electing to be resident alien.

 

File jointly and you are permitted to e-file.  
 

It is fortunate that your paychecks have been deducting SS and Medicare. Getting an employer to fix that is messy.  

 

 

Edited February 3, 2023 by Mike E

[Rocio0010 5,571]

55 minutes ago, Kaykay1 said:

However they consider F1 visa status as exempt from using that 183 day rule and I’m quite concerned

Where did you get that from?

[Kaykay1 0]

2 hours ago, Rocio0010 said:

Yes, me, in 2020 when I was filing my 2019 taxes, I was on an F1, married, but still not a permanent resident for immigration purposes.  And we used Liberty Tax, which is essentially the same, with no issues.

Thank you. This is it. So you just filed jointly. I guess you already had EAD and SSN while you filed, with pending AOS. 
 

Sometimes, these things can be confusing so when you talk to someone with the same situation, it helps a lot. Thank you. 

I totally love visajourney, it is very informative and i’m grateful for all the help we get from all of you. God bless you all. 

[Rocio0010 5,571]

30 minutes ago, Kaykay1 said:

guess you already had EAD

I guess you’re not understanding that the IRS doesn’t care if you have an EAD. I even doubt they know what it is. Nor do they care if your AOS is pending. All they care is that if you meet the substantial presence test, you have to pay your taxes. Black or white. 

[JeanneAdil 6,224]

Married in 2022 , the USC  would file jointly even if not in the US

 

physical presence is not part of this if married to USC

[Gabriel5454 19]

6 hours ago, Rocio0010 said:

I guess you’re not understanding that the IRS doesn’t care if you have an EAD. I even doubt they know what it is. Nor do they care if your AOS is pending. All they care is that if you meet the substantial presence test, you have to pay your taxes. Black or white. 

This is inaccurate.  As per https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test, when calculating the number of days in the US for the substantial presence test, you do not count the days you are an "exempt individual".  This includes a few categories of temporary visitors, in particular:

• A student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa, who substantially complies with the requirements of the visa.

As a result most foreign students in the US are not residents for tax purposes.  This has important tax implications since they often are not eligible for the same tax benefits as those classified as "residents" for tax purposes (which includes, not is not limited to, US citizens and permanent residents) and hence often pay higher rates of taxes.

 

OP, I suggest you review https://www.irs.gov/individuals/international-taxpayers/determining-an-individuals-tax-residency-status.  Quoting from that page,

 

Quote

If you are not a U.S. citizen, you are considered a nonresident of the United States for U.S. tax purposes unless you meet one of two tests. You are a resident  of the United States for tax purposes if you meet either the green card test or the substantial presence test for the calendar year (January 1 – December 31).

If you don't meet either of those two tests, then the foreign spouse may have to submit the election to be treated as a resident for tax purposes.  For more info see https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse

 

 

[Kaykay1 0]

4 minutes ago, Gabriel5454 said:

This is inaccurate.  As per https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test, when calculating the number of days in the US for the substantial presence test, you do not count the days you are an "exempt individual".  This includes a few categories of temporary visitors, in particular:

• A student temporarily present in the U.S. under an "F," "J," "M," or "Q" visa, who substantially complies with the requirements of the visa.

As a result most foreign students in the US are not residents for tax purposes.  This has important tax implications since they often are not eligible for the same tax benefits as those classified as "residents" for tax purposes (which includes, not is not limited to, US citizens and permanent residents) and hence often pay higher rates of taxes.

 

OP, I suggest you review https://www.irs.gov/individuals/international-taxpayers/determining-an-individuals-tax-residency-status.  Quoting from that page,

 

If you don't meet either of those two tests, then the foreign spouse may have to submit the election to be treated as a resident for tax purposes.  For more info see https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse

 

 

How do you submit the election. Nobody is saying anything about how it is done. 

[Gabriel5454 19]

7 minutes ago, Kaykay1 said:

How do you submit the election. Nobody is saying anything about how it is done. 

Check that final link again (i.e. https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse).  From there,

 

Quote

How to Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

1. A declaration that on the last day of the tax year one spouse was neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A) and the other spouse was, and that you choose to be treated as U.S. residents for the entire tax year.
2. The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

 

Keep in mind, I am not a tax professional, just a random stranger on the internet.    So feel free to do your own due diligence.  But this is my understanding of the situation.

[Wuozopo 4,285]

2 hours ago, Kaykay1 said:

How do you submit the election. Nobody is saying anything about how it is done. 

 I told you how to submit a statement (if you need one) in my post in this thread.  Here https://www.visajourney.com/forums/topic/795745-how-can-i-file-jointly-as-an-f1-married-to-a-us-citizen/?do=findComment&comment=10796002

 

And for the total of what the IRS says on this topic see Publication 519 US Tax Guide for Aliens by the IRS. It covers all the details of resident alien or non resident, students, exemptions, statements, etc. Dive into Chapter 1. Note that the 2021 edition is the latest published, but had anything changed, it would have been replaced. Just remember when it says 2021, read it as 2022 for your purposes. 
Pub. 519 https://www.irs.gov/pub/irs-pdf/p519.pdf

 

Edited February 4, 2023 by Wuozopo

[midwinterrose 263]

2 hours ago, Kaykay1 said:

How do you submit the election. Nobody is saying anything about how it is done. 

This is the exact document we signed and sent along with our tax return, just change the generic info to your own.  We had to paper-file (mailed it in) our return because I couldn't find any tax software that would allow me to upload this extra document.  I used TurboTax or something similar, and then selected the mail-in option at the end and printed out the return.  I then added this page, signed by both my husband and I, and mailed the whole thing to the IRS.

 

That was at the beginning of COVID, so it took MONTHS to process our return.  It took so long that the IRS paid us a few dollars in interest, that I then had to report as income on our next year's return. 🤷‍♀️

TaxResidencyStatement_Sample (1).pdf

Edited February 4, 2023 by midwinterrose
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