How does one file taxes with an out of status spouse?

[kaylip]

Do you file as single or married? If filing as married what does that person do if his spouse doesn't have a SSN nor TIN?

[ewilliams]

Do you file as single or married? If filing as married what does that person do if his spouse doesn't have a SSN nor TIN?

Your spouse needs to apply for an itin number.
You should definitely file as married, also considering if you do file paperwork for a greencard, thats evidence your marriage is real. Applying for an itin number is fairly easy,and his/her status don't matter when filing for itin.

[UScitizenFilingforspouse]

Your spouse needs to apply for an itin number.
You should definitely file as married, also considering if you do file paperwork for a greencard, thats evidence your marriage is real. Applying for an itin number is fairly easy,and his/her status don't matter when filing for itin.

Question related to OPs initial question. Is it ok to file "married filing jointly" if your spouse is out of status and if the spouse has a SSN, just use that? Ahy thoughts are appreciated.

[ewilliams]

Question related to OPs initial question. Is it ok to file "married filing jointly" if your spouse is out of status and if the spouse has a SSN, just use that? Ahy thoughts are appreciated.

I can only speak from my own experience ofcourse.
I myself are out of status,my wife (us citizen ) filed taxes every year for the last 3,using my itin number and we never had any problems. When I applied for an ITIN , I was already out of status and they still gave me one. The IRS doesnt care about your status.

[UScitizenFilingforspouse]

I can only speak from my own experience ofcourse.
I myself are out of status,my wife (us citizen ) filed taxes every year for the last 3,using my itin number and we never had any problems. When I applied for an ITIN , I was already out of status and they still gave me one. The IRS doesnt care about your status.

Oh ok, here's our situation. My spouse is adjusting status from F-1 through me, US citizen. He has a SSN and an EAD. Unfortunately, he is out of status now because he couldn't find a job within 90 days after getting his EAD. I suppose that if the IRS does not care about his status we'll just use his SSN. Thanks!

[ewilliams]

Oh ok, here's our situation. My spouse is adjusting status from F-1 through me, US citizen. He has a SSN and an EAD. Unfortunately, he is out of status now because he couldn't find a job within 90 days after getting his EAD. I suppose that if the IRS does not care about his status we'll just use his SSN. Thanks!

That would be my guess. I am no lawyer ofcourse, so it's just my opinion and my experience. Will your ead be invalid after 90days ifyou dont find a job??

[S_R_E]

I was out of status for years and filed taxes jointly with my wife using my SSN (valid SSN issued to me when I originally filed for AOS with my ex-wife, we separated before two years and never filed for removal of conditions) ever since we were married. We even entered into a tax installment plan with the IRS with no issues. All my income reported against the SSN also applied to my Social Security account correctly.

When we filed for AOS last January we included at least 5 years (I forget exactly how many we did include) of joint tax returns as part of our application. On all the submitted paperwork for the process I included my existing SSN and A# wherever they were asked for on the forms. I was approved for my 10 year green card in June last year and it was issued with my existing A# and my SSN remains the same (they are issued for life and never change) and I still have my originally issued Social Security Card.

[UScitizenFilingforspouse]

I was out of status for years and filed taxes jointly with my wife using my SSN (valid SSN issued to me when I originally filed for AOS with my ex-wife, we separated before two years and never filed for removal of conditions) ever since we were married. We even entered into a tax installment plan with the IRS with no issues. All my income reported against the SSN also applied to my Social Security account correctly.

When we filed for AOS last January we included at least 5 years (I forget exactly how many we did include) of joint tax returns as part of our application. On all the submitted paperwork for the process I included my existing SSN and A# wherever they were asked for on the forms. I was approved for my 10 year green card in June last year and it was issued with my existing A# and my SSN remains the same (they are issued for life and never change) and I still have my originally issued Social Security Card.

Awesome! Thank you for sharing that info. I am sure others will find it useful, too.

[mcsweeney89]

I was wondering about this also as I came over on a b1/2 in may, married in august and filed for aos in september (still waiting and thus havent worked yet so I have nothing to file) I have a SSN from when I worked on a J1 6yrs ago. So my US citizen wife was going to file as married obviously just wasnt sure if we had to do it as married file seperately as I wouldnt have anything to file or jointly.

[newacct]

If he has an SSN, that is his SSN for life regardless of changes in his status, and he must use that SSN when filing taxes or in any other place that asks for an SSN. He cannot apply for an ITIN if he has an SSN.

If you are married, you cannot file as "Single" under any circumstances. You can only choose "Married Filing Jointly" or "Married Filing Separately" (or "Head of Household" in some rare cases but I will not get into that). Married Filing Jointly is generally better than Married Filing Separately tax-wise. Sometimes when a spouse doesn't have an SSN or ITIN, people might file separately to avoid the hassle of filing for an ITIN, and amend it later when they qualify for an SSN, but in this case that is not an issue since he has an SSN.

[mcsweeney89]

I was wondering about this also as I came over on a b1/2 in may, married in august and filed for aos in september (still waiting and thus havent worked yet so I have nothing to file) I have a SSN from when I worked on a J1 6yrs ago. So my US citizen wife was going to file as married obviously just wasnt sure if we had to do it as married file seperately as I wouldnt have anything to file or jointly.

This maybe a question for a tax accountant but If we file jointly despite the fact Im not yet a legal permanent resident are they going to come after the tax on the $10,000 I earnt at the beginning of the year in Australia as an australian resident and already paid tax on it over there?

[newacct]

This maybe a question for a tax accountant but If we file jointly despite the fact Im not yet a legal permanent resident are they going to come after the tax on the $10,000 I earnt at the beginning of the year in Australia as an australian resident and already paid tax on it over there?

If you came over in May 2017, you meet the Substantial Presence Test for 2017, so you are a resident for tax purposes, but due to the First Year of Residency rules, you are only a resident starting when you arrived (May), and you are a nonresident before that, so you are a dual-status alien for 2017. As a nonresident alien for the part of the year before you arrived, you are only taxed on your income connected to the US, so you won't be taxed on your Australian income. You are subject to US taxation on your worldwide income in the part of the year you are resident alien, but I am assuming you had no income after you arrived. So you likely won't have to file anything for 2017, that is if you and your spouse each file as Married Filing Separately.

If you file jointly, you are using the Choosing Resident Alien Status or Nonresident Spouse Treated as Resident choices, which makes you both resident aliens for the entire year of 2017 (both people must be resident for the entire year to file jointly). As resident alien, you would be subject to US taxation on your worldwide income. However, you can use the Foreign Earned Income Exclusion on the 12-month period before you arrived (you can use the exclusion if you are out of the US for 330 days during a 12-month period), which will exclude up to $100k of earned income. So you will end up not having to actually pay US taxes on that Australian income, even though you have to report it.

[kaylip]

I'm sending in my package in 2 days and we sent in 2016 tax returns. Will USCIS ask for 2017?

[ike]

Your spouse needs to apply for an itin number.
You should definitely file as married, also considering if you do file paperwork for a greencard, thats evidence your marriage is real. Applying for an itin number is fairly easy,and his/her status don't matter when filing for itin.

how do I file for ITIN and what does it mean?

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how and where do I file for ITIN and whats the meaning?my wife (USC)will be filling for her tax next month and i'm out of status(still waiting on my EAD)she need to file a joint tax

[newacct]

how do I file for ITIN and what does it mean?

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how and where do I file for ITIN and whats the meaning?my wife (USC)will be filling for her tax next month and i'm out of status(still waiting on my EAD)she need to file a joint tax

If you don't already have an SSN, and are not currently eligible for an SSN, you need to apply for an ITIN to file taxes. (This has nothing to do with being out of status -- many people who are in status also need to apply for ITINs to file taxes, e.g. H4 spouses and children of H1b workers usually cannot work and cannot get SSNs, and so must get ITINs to file jointly or be included as dependents with the H1b worker.)

To apply for an ITIN, you file form W-7 together with the tax return filing. However, if you mail it, you will usually need to include the original copy of your passport, which is an inconvenience. Alternately, you can make an appointment at certain IRS taxpayer assistance centers which allow certifying the document in person for ITIN application purposes (not all IRS taxpayer assistance centers offer this service); and then you can submit it in person there without needing to send in your original passport.

If you don't want the inconvenience of applying for an ITIN, your spouse can file as Married Filing Separately and when you get your EAD and SSN, you guys can amend the tax return to Married Filing Jointly with your SSN.