Urgent Tax question for AOS

[Roh&Dee 4]

I am filing for AOS for my wife who came on a K1 visa in Nov, we got married in Dec 2010 and i am filing for the AOS. I am filing my Federal taxes for 2010, in this what should be her status Nonresident or Resident? i was planning to do the married filing jointly as Filing status. Please advice.

[YuAndDan 153]

Until AOS is approved a K-1 holder is considered non-resident.

You can file a joint IRS return.

[CarlosAndSveta 808]

I am filing for AOS for my wife who came on a K1 visa in Nov, we got married in Dec 2010 and i am filing for the AOS. I am filing my Federal taxes for 2010, in this what should be her status Nonresident or Resident? i was planning to do the married filing jointly as Filing status. Please advice.

Until AOS is approved a K-1 holder is considered non-resident.

You can file a joint IRS return.

You can file a joint return with your wife for 2010 and on that return you can make an election to treat your wife as a Resident Alien for tax purposes. Please read the information in this thread for more detailed information:

Filing Taxes as Married

[payxibka 10,047]

Until AOS is approved a K-1 holder is considered non-resident.

NO.... not necessarily... there is also a substantial presence test that can allow the K-1 visa holder (who is not yet AOS approved) to be treated as a resident alien for tax purposes

AND

if all else fails, then there is the special provision for the non-resident alien spouse to be treated as a resident alien by special election...

Edited February 7, 2011 by payxibka

[VanessaTony 3,567]

Until AOS is approved a K-1 holder is considered non-resident.

Incorrect. I spoke with H&R block about it and read IRS's rules about it. I was considered a resident for tax purposes due to me being the spouse of a USC but I had to make "the choice" to be treated that way.

See here: http://www.irs.gov/businesses/small/international/article/0,,id=129431,00.html

Under the residency rules of the Code, any alien who is not a RESIDENT ALIEN is a NONRESIDENT ALIEN. An alien will become a RESIDENT ALIEN in one of three ways:

1.

By being admitted to the United States as, or changing status to, a Lawful Permanent Resident under the immigration laws (the Green Card Test);

2.

By passing the Substantial Presence Test (which is a numerical formula which measures days of presence in the United States); or

3.

By making what is called the "First-Year Choice" (a numerical formula under which an alien may pass the Substantial Presence Test one year earlier than under the normal rules). Refer to the discussion of "First-Year Choice" in Chapter 1 of Publication 519.

I personally fit under #3 here: http://www.irs.gov/publications/p519/ch01.html#en_US_publink1000222193

Nonresident Spouse Treated as a Resident

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a U.S. resident. This includes situations in which one spouse is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other spouse is a nonresident alien at the end of the year.

If you make this choice, you and your spouse are treated for income tax purposes as residents for your entire tax year. Neither you nor your spouse can claim under any tax treaty not to be a U.S. resident. You are both taxed on worldwide income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years.

Edited February 7, 2011 by Vanessa&Tony