I am on F1 optical practical training (OPT) and will have been in the United States for five years in June 2019. My wife and my son are in F2. So far, I only submitted tax returns using 1040-NR, as someone told me we cannot have individual taxpayer identification numbers (ITINs) if we have not lived here for five years. But I also heard someone say this is not true. Could you give me some guidance on this?
Filing of a 1040NR (as a nonresident alien) as opposed to a 1040 (as a resident alien) depends on a "substantial presence" in the United States as measured by the number of days physically in the U.S. The formula is convoluted, as a percentage of days in prior years can be counted, or 183 in the present year. If you can file as a resident alien, you can take a deduction (severely limited by the new tax law) for dependents.
There is nothing to prevent you from obtaining ITINs for your family in the meantime. While your specific circumstances are vague, I wonder if you need those deductions since F1 OPTs are limited in employment. Also, you may be able to enjoy the benefit of a tax treaty.
You should consult a tax preparer versed in these matters.
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Answered by: Dafna Meltzer, CPA, is with Meltzer & Meltzer CPAs in Elkins Park, Pa.