Exemptions/allowances - Dependents from Canada to the US

[falcyon]

Hi All,
I am an US perm resident living and working in the US. I married a canadian citizen last year and my first child was born in canada as well before we got married.

Since sept 2007, they have moved to live with me in the US (overstayed visa, illegal to be precise) and never returned to canada. I didnt claim my wife and my son as dependent on my 2007 tax return as they were less than 6 months old in the country.

Can I claim them as dependents in my 2008 tax filing. If so, what do I enter in lieu of their ssn...they are canadians....we're expecting our second son nov 2008 and he'll be born here in the US...yay....Is it legally possible to claim all of them as dependents on my tax return or do I need to provide proof of legal presence and is there any special provisions to claim canadians as dependents ?

Any help or links on the above will be greatly appreciated.

Thanks in advance
Shon

 

[TheRealCanadian]

Since sept 2007, they have moved to live with me in the US (overstayed visa, illegal to be precise) and never returned to canada.

They may be illegal, but they haven't overstayed a visa since they never got one to begin with.

I didnt claim my wife and my son as dependent on my 2007 tax return as they were less than 6 months old in the country.

The Canada-US tax treaty allows them to claim residence and therefore be treated as residents. If it is advantageous to you, you may want to amend your 2007 return.

If they're going to stay with you, I'd get the permanent residence process underway first. That's far more important than the tax consequences. I'm surprised you haven't done this yet, after over a year of living illegally.

 

[falcyon]

Thanks for the reply....However, I do not want to amend 2007 return as she was under maternity leave and filed her own taxes separately with the son in canada for 2007.
I did my taxes as single status here in the US. This year has been different since she's living with me.

So would it be okay to apply for their ITIN along with 2008 return. Or can I apply for their ITIN even before filing my tax returns.

I did visit the USCIS local office and was told not to file i-130 as it dosen't allow legal US residency. I was told that, as a perm resident, I should wait until my citizenship to apply for their papers. Since she didnt intend to work right now, I didnt feel the need to file for adjustment just yet.

Thanks for all the help and pointers this far.

Shon

 

[TheRealCanadian]

Thanks for the reply....However, I do not want to amend 2007 return as she was under maternity leave and filed her own taxes separately with the son in canada for 2007. I did my taxes as single status here in the US. This year has been different since she's living with me.

I'd still take a peek and see what your return would be like if you filed jointly, declared her Canadian income and then claimed a credit for Canadian income taxes paid. It doesn't hurt to at least run the numbers - and you might save several hundred dollars in tax.

So would it be okay to apply for their ITIN along with 2008 return. Or can I apply for their ITIN even before filing my tax returns.

You cannot apply for an ITIN until you file the return.

I was told that, as a perm resident, I should wait until my citizenship to apply for their papers. Since she didnt intend to work right now, I didnt feel the need to file for adjustment just yet.

My apologies - I missed that part of your post. Yes, that's correct - as a Permanent Resident she cannot adjust status, nor is her time out of status forgiven. Wait until you become a citizen.