F-1 OPT Tax Return

[bluesky]

Hi,everyone. I have some questions regarding F-1 OPT tax return. Both of my husband and I are Chinese. My husband came to US in Agu 2004 to Pursue a PhD on F-1 visa. He graduated in Agu 2009 and then started to teach at a university. From the year 2004 to 2008, he was treated as non resident alien. I just wanted to make sure whether he is an alien resident from Jan 1st, 2009? That is to say, is he treated as alien resident in the whole 2009? I came to US on F-2 in Mar 2009. Am I treated as alien resident? Can I file federal tax return jointly?

My husband worked on F-1 OPT from 08/23/2009 to12/31/2009. He had social security and medical taxes withheld from paychecks. Can he claim for refund? If he can, how does he ask for refund? By submitting Form 843 and 8316?

From US-China income tax treaty, I know that a student still qualifies to claim $5000 exemption from tax if he or she stay in the US exceeds 5 calender years. The point is, my husband worked on OPT. Does he qualify for tax treaty benefits? What kinds of Form he should file? W9 or 8833?

I am looking forward to hearing from everyone who familiar with these topics. Thanks!

[Atlanta Tax Guru]

For 2009, he was a resident alien due to exceeding the five-year exemption period.

For this reason, he CANNOT claim an exemption from FICA (Social Security and Medicare) taxes for 2009.

You can file jointly with your husband and you will CHOOSE to be treated as a resident alien. This will allow you to claim the $11,400 joint standard deduction plus two $3,650 personal exemption (for yourself and your husband).

Your husband does NOT qualify for the $5,000 treaty exemption because he was no longer a student, even though he was on OPT in 2009. He COULD have claimed it past the five-year exemption period, but that claim was forfeited when he applied for H-1B status, because that action invalidates any claim for a "closer connection" to his home country.