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Robin D.
Robin D., Senior Tax Advisor 4
Category: Tax
Satisfied Customers: 13112
Experience:  15years with H & R Block. Divisional leader, Instructor
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I use turbotax pro tax 5 years, I am non resident alien with

Customer Question

Hi, I use turbotax pro for filling tax for past 5 years, I am non resident alien with working visa, same as my spouse (married for 5 years), we both came from china. however I am not aware that I can't file as married jointly. I filed wrong form for the past five years and just realize recently when we change HR and payroll, when the system notify me I need to file as single. I assume that applies to my spouse too. What should I do now? Thank you!
Submitted: 4 months ago.
Category: Tax
Expert:  Robin D. replied 4 months ago.


Non Resident for tax purposes is different than a non resident for immigration. There are some VISAs that you could have which keep you as a non resident but not all.

"F,""J,""M," or "Q" visa holders stay nonresident for a certain number of years. They still have to file a 1040NR and cannot file joint.

If you do not have one of the above VISAs then you may be a Resident Alien for tax purposes in some of the years or all.

You are considered a resident alien if you met one of the following two tests for the calendar year:

  1. The green card test - You are considered to have met the green card test if at any time during the calendar year you were a lawful permanent resident of the United States according to the immigration laws, and this status has not been revoked or administratively or judicially determined to have been abandoned.
  2. The substantial presence test -

    To meet the substantial presence test, you must have been physically present in the United States on at least:

  3. 31 days during the current year, and
  4. 183 days during the 3 year period that includes the current year and the 2 years immediately before. To satisfy the 183 days requirement, count:
    • All of the days you were present in the current year, and
    • One-third of the days you were present in the first year before the current year, and
    • One-sixth of the days you were present in the second year before the current year.

First thing to do is decide if you were a resident alien for taxes.

Expert:  Robin D. replied 4 months ago.

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