Tax status dilemma when spouse is foreign citizen and NOT nonresident alien

[air0txi]

Hi, this is a typical problem but I could not find the exact solution in the forums. I would appreciate any information or sharing similar experience.

Here is the scenario:
Fiance = Lives abroad, foreign citizen, B-2 holder(exp. 2012), visited USA once 2/3 months back - did not overstay.
Me = GC holder. Planning to get married sometime in 2009. Applying for USC in 2011.

Problem1: Entering USA with B-2 after marriage
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I will not sponsor her till my citizenship as that will be faster. She wants to visit USA w/o intention of overstaying. She has a job abroad. Will my PR status cause her problem at port of entry?

Problem2: Tax status after marriage
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Assuming she cannot enter USA, can I still file taxes (2009) as Married filing jointly? The IRS laws are clear about nonresident aliens, but a foreign citizen staying abroad will not fall in that category. My concern is that filing taxes jointly without her physical presence in USA will raise eye-brows during my citizen application. Has anyone faced similar situation?

Thanks for your input in advance!!

 

[Jackolantern]

Problem1: Entering USA with B-2 after marriage
==============================================
I will not sponsor her till my citizenship as that will be faster. She wants to visit USA w/o intention of overstaying. She has a job abroad. Will my PR status cause her problem at port of entry?

Yes, it may cause a problem if they know about the marriage. It's not easy to convince them that somebody will leave the US promptly and voluntarily if they are married to a US citizen or permanent resident. Every time she visits the US with that visa after marrying you, she runs the real risk of being sent back and having the visa canceled.

Problem2: Tax status after marriage
===========================
Assuming she cannot enter USA, can I still file taxes (2009) as Married filing jointly? The IRS laws are clear about nonresident aliens, but a foreign citizen staying abroad will not fall in that category. My concern is that filing taxes jointly without her physical presence in USA will raise eye-brows during my citizen application. Has anyone faced similar situation?

Read up the IRS rules regarding filing married vs. single. I believe that if the spouse lives separately from you outside the country, and is not a citizen or permanent resident, you may have to file as single (not married filing separately, but "single"). Follow the IRS rules properly and Immigration can't penalize you for that. You're going to be applying for citizenship using the regular 5 year rule, so the strength and togetherness of your marriage is irrelevant.

 

[air0txi]

Yes, it may cause a problem if they know about the marriage. It's not easy to convince them that somebody will leave the US promptly and voluntarily if they are married to a US citizen or permanent resident. Every time she visits the US with that visa after marrying you, she runs the real risk of being sent back and having the visa canceled.

Thanks Jackolantern for the reply. Yeah...i am keeping my fingers crossed, but she has no lack of optimism

Read up the IRS rules regarding filing married vs. single. I believe that if the spouse lives separately from you outside the country, and is not a citizen or permanent resident, you may have to file as single (not married filing separately, but "single"). Follow the IRS rules properly and Immigration can't penalize you for that. You're going to be applying for citizenship using the regular 5 year rule, so the strength and togetherness of your marriage is irrelevant.

The immigration websites will take serious issue with that, the marital status has to be reported accurately in the tax return..murthy.com comes to mind. Some tax lawyers suggested that the physical domicile of the wife does not matter as far as tax return in concerned, others take different view. There seems to be a lot of confusion among themselves as the IRS does not clearly spell it out. It really seems like file jointly if you can get away with it. The interpretation is pretty wishy-washy. I think I can get an ITIN number for her by sending the necessary documents (as per IRS). The problem is if the interview officer gets overly curious about my tax status during the citizenship process (i dont know how big a role it plays in this process!!). The financial difference between the 2 status is also significant.

 

[Jackolantern]

It looks like you can choose to file jointly by treating the nonresident alien spouse as a resident. But the nonresident spouse's worldwide income would have to be included in the return. See http://www.irs.gov/publications/p54/ch01.html

As far as USCIS is concerned, they won't expect you to have joint tax returns or anything else joint during the time your spouse is living outside the US separately from you without a green card (but they will expect to see other evidence of your relationship, like how and when you visited each other before and after getting married). And as far as your upcoming tax return due this April 15 is concerned, you will definitely file as single because you were still single throughout all of 2008. So the married vs. single tax question only becomes relevant for the return due on April 15, 2010, so you have a lot of time to research it and get more opinions.

 

[air0txi]

It looks like you can choose to file jointly by treating the nonresident alien spouse as a resident. But the nonresident spouse's worldwide income would have to be included in the return. See http://www.irs.gov/publications/p54/ch01.html

Jackolantern, thanks for all your help. I was mislead by the "non-resident alien" option when i read the IRS docs. I thought that would be an alien without green card but still staying in the USA. I have changed my W-4 for 2009. No point in waiting for tax refund next year if i can keep it now. Thanks again.

 

[mmed]

Jackolantern, thanks for all your help. I was mislead by the "non-resident alien" option when i read the IRS docs. I thought that would be an alien without green card but still staying in the USA. I have changed my W-4 for 2009. No point in waiting for tax refund next year if i can keep it now. Thanks again.

Writing married or single in W4 has nothing to do to great extent during the time of filling. It is something to till the IRS at what level they are going to withhold from your salary and even if you left it blank, they are going to hold the maximum. To file, even if you are married without SS number or TIN issued for your spouse, you have to file as single. Filing as single when you are married is in the benefit of IRS and has nothing to do with fraud or anything like that. To report your wife's name in tax for many years and she enter every now and then on B visa without mentioning the relation, is the thing which may trigger problems during citizenship application.

 

[nelsona]

Married US residents can elect to have their spouse file jointly with them, regardless of where they live. To do this the foreign spouse must also report all world income. All the same tax provisions would then apply (foreign tax credits, foreign earned income exclusion, etc) to reduce any double taxation.


A married person cannot file a "single". One can file "married filing separately", however, which genearlly means higher taxrate. If filing jointly withhout the spouse having an SSN, a w-7 should be included which will get the ITIN for thespouse.

As was brought out, withholding on your W-4 has nothing to do with how you eventaully file your taxes. It merely determines how much you loan the govt for the year.