Form 1040NR or Form 1040?

[Lucky]

Background:
Husband came to USA on H-1 visa on August 2010. The wife and the children(both on H-2 visa) lived with the husband since December 2010. They are still on the H1/H2 visa. The family went back to their home country to take 3-month vacation each year since 2011. The husband has social security number and the wife and the children are going to apply the ITIN now.

Question:
Since they all met substantial presence test for tax year 2011 and 2012, can the husband's filing status be married filing jointly and put the wife on the return and claim the kids as dependent and file Form 1040 instead Form 1040NR? The previous preparer filed 1040NR for 2011 tax return.

[Koss]

Resident or Nonresident Alien?

What country?

Are you sure they meet the substantial presence test?

Some days don't count, if they are exempt.

BMK

[Lucky]

Both Husband and Wife are from Greece. Alien individuals with "F", "J", "M", or "Q" visa are exempt individuals (Instructions for Form 1040NR)

[Koss]

Alien Status

Based on the limited facts you've provided, it sounds like, yes, they are resident aliens for tax purposes, so they can file MFJ on a regular Form 1040.

BMK