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I am currently holding F1 student (OPT status) visa and worked several months last year in a company, the salary on my W2 is somewhat around $30k. I am married and my wife has been in US since March 2012 with no job or income (she doesn't have ITN or SSN). I have been in US less than 3 years.

I figured out that I should file 540NR Long with accompanied Schedule CA (540) attached. My question is, can I file the tax jointly or married filing separate? Since my wife doesn't have any income at all, can I simply file 540NR Short? Is Schedule CA (540) a must document?

Thank you.

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    How did you figure you should be filing NR version? How long have you been in CA? – littleadv Apr 1 '13 at 23:57
  • I have been in CA for about 1.5 years. And I read through online source saying those with F1 status and physically present in US less than 5 years are considered as NR from taxing perspective. This is different from NR concept from immigration perspective. – jeffreyb Apr 2 '13 at 0:50
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    The 5 years rule is for Federal taxes, not CA. In CA - you're considered a resident. – littleadv Apr 2 '13 at 1:02
  • and if you have no income from outside CA, then filing CA taxes as resident or nonresident makes no difference anyway – user102008 Apr 2 '13 at 2:17
  • @user102008 yes, it actually does. Community rules etc. But I'm sure the OP wouldn't care. – littleadv Apr 2 '13 at 5:01
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California doesn't conform to the Federal law on residency issues, and has its own rules on determining residency. Generally, if you've spent more than 9 months in California - you're considered a resident, regardless of your immigration status (if any) or whatever tax treaties your home country may have with the US (unless they also have a separate tax treaty with California, or the Federal tax treaty is explicitly superseding State tax law - which most of them don't).

Thus, you're supposed to be filing form 540, not 540NR, and since you're married - you should file as such. Taking into the account the California community property rules, your wife owns half of your income, thus filing MFS will be of no benefit - you'll have to file MFS for each of you.

  • I don't see where it mentions "if you've spent more than half a year in California". It says you are a California resident if you are "Present in California for other than a temporary or transitory purpose" – user102008 Feb 24 '14 at 5:15
  • @user102008 Here's some references from the professionals. What you stated is what the law says. What the CPA describes is the FTB's interpretation of the law. So unless you want to take them to court on that (and I believe it has been done, not successfully, before), you should go by the suggestion given. mainamundson.com/california-residences.php – littleadv Feb 24 '14 at 5:17
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You are all missing the fact that his wife does not have a SSN and in order to file a state return, she needs a SSN or ITIN. And in order to get an ITIN, they need to make an application with the federal return. Since he is F1, he cannot file with his wife unless he is from certain countries.

  • Actually, a proper work visa comes with a "SSN" of sorts used for purpose of employment only, it even says on it in big red letters, valid for work only, that's what they would use. If they don't have it, they need to find out what they failed to do along the way and possibly they could face issues, for one they should know it given they gave it to the employer as is required by law. – GµårÐïåñ Mar 30 '17 at 0:26

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