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I was hoping someone could bring some clarity on this. Here is my situation:

  • I have been in the US since 2019 and last year I submitted my taxes for 2022 as nonresident because I was under an F1 student visa. I changed my status to H1B in April of 2023.
  • My wife came to the US under an H4 as well in April of 2023, so we both pass the substancial presence test.

From what I’ve read both her and I qualify as dual status and are not allowed to file jointly, only married separately, although I'm not sure I'm interpreting this correctly. We will also be requesting her ITIN when submitting her tax return. Short question is if we can be considered as residents for the full year of 2023 so that my wife and I can file jointly? (my wife had little income at the start of 2023 so I believe we can apply the foreign earned income exclusion)

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Yes, you guys can both be treated as residents and file jointly.

Since you guys are both US citizens or resident aliens at the end of the year, you can elect to use the Choosing Resident Alien Status election. (And if only one of you was a US citizen or resident alien at the end of the year, and the other one was a nonresident alien for the entire year, you can elect to use the Nonresident Spouse Treated as Resident election.) Both of these elections do the same thing: you are both treated as resident aliens for the entire year, and you are required to file as Married Filing Jointly.

Note that, by being treated as a resident alien the entire year, you would be subject to US tax on your worldwide income the entire year, whereas in the original dual-status situation, you would only be subject to US tax on your worldwide income for the part of the year you were resident, and only subject to US tax on your US income for the part of the year you were nonresident. Your wife can use the Foreign Earned Income Exclusion on the period before she came to exclude US tax on the income during that period.

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I believe I've found an answer and it is that yes we can make the election to be treated as residents for the full year. This is from the IRS regarding election under IRC § 6013(g): "If both spouses are nonresident aliens at the beginning of the year, the couple may still make an election under IRC § 6013(g) as long as one spouse becomes a U.S. resident during that year." Just would like someone to confirm this is correct.

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From IRS Pub. 519 Chapter 1 page 8, "Choosing Resident Alien Status": Dual-status aliens can choose to be treated as a resident for the entire year if all of the following apply.

  1. Nonresident at the beginning of the year
  2. Resident or citizen at the end of the year
  3. Married to resident or citizen at the end of the year (including if both spouses were nonresidents at the beginning of the year and residents at the end of the year)
  4. Spouse joins you in making the choice

The only reason why I'm not going to say "yes" or "no" to your question is to avoid providing tax advice. If you determine that all of the above apply, then you would be able to make this election and file jointly.

In order to make this election, you "should attach a statement signed by both spouses to your joint return for the year of the choice. The statement must contain the following information.

  • A declaration that you both qualify to make the choice and that you choose to be treated as U.S. residents for the entire tax year.
  • The name, address, and TIN (social security number (SSN) or individual taxpayer identification number (ITIN)) of each spouse. (If one spouse died, include the name and address of the person who Page 8 Chapter 1 Nonresident Alien or Resident Alien?makes the choice for the deceased spouse.)"

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