US taxes while in I130/IR1/CR1 proceedings

[speedwell 224]

Folks, I wanted to clear up some confusion about how a USC must file taxes with a non-resident alien spouse. I just paid a CPA a lot of money to do my taxes, and part of the reason he was so expensive was he knew what he was about when it came to immigrant issues. I learned the following things:

0. You may not file married for tax year 2012 if you were unmarried on December 31, 2012, even if you got your final divorce decree the day before.

1. You MUST file married if you are married on December 31, 2012. Don't believe H&R Block! There is ONE exception, according to the IRS: if the NRA (non-resident alien) has not lived or made income in the US for the tax year, AND the USC (citizen/permanent resident/resident alien) has dependents (children, parents, others they will claim on their tax forms), the USC is permitted to file as Head of Household, even though it is technically a single status. If you think this applies to you, go to the IRS site and do your research and make sure you qualify. Filing as Single without Head of Household will not apply to anyone who is married.

2. Married filing joint will usually reduce your tax burden or get you a bigger refund. If you do this, and your NRA spouse does not have a tax ID number (SSN or ITIN), then you must submit a W-7 with appropriate documentation on paper along with your paper tax filing to the special Austin address for ITIN filings. The NRA will be treated as a resident for tax purposes and write a letter to that effect to attach to the tax filing (PM me if you want the wording my CPA used). Their income will fall under a Foreign Income Exclusion of 95K USD for year 2012, meaning that they will be taxed on all income over that amount they made overseas, as well as on all their US income. Documentation for the W-7 must be ORIGINAL or a copy CERTIFIED BY THE ISSUING AGENCY, not certified by a notary public. UK residents may legally hold two passports at the same time, so it may be worth getting one and sending the other. Dual citizens may send the passport that they aren't using for Immigration. Others should examine the instructions for the W-7 to see what documentation is acceptable.

3. Use married filing separately if you don't qualify for single head of household and you don't want to bother with an ITIN, or if other circumstances make it necessary for you to file separately. This is the easiest. Put your own information as if you were filing taxes by yourself. You must do two things: add your spouse's name in the appropriate field, and write NRA in the field for the SSN/ITIN. Be careful because there are many circumstances that may make it necessary for the NRA to also file a US tax return in their own right: substantial presence in the US, work or doing business in the US, investment or other income in the US, providing more than half the support for a US dependent, and so forth. The NRA will still need to file taxes in their home country if required.

I'm not a CPA or your lawyer.

Edited February 21, 2013 by speedwell

[speedwell 224]

Someone asked me about filing single (that is, without head of household) and amending the tax return later to say married. No, folks, that's not the right way to do it and opens you up to questions like, why didn't you say you were married in the first place? Also, if for any reason your spousal visa interview takes place after April 15, you don't want to show the interviewing officer a 2012 tax form saying "single". In fact you might want to take a copy of the IRS instructions with you, if you do file as single head of household, to prove you weren't violating any laws or trying to say you weren't married. (Obviously this doesn't apply if you really were single on December 31, 2012.)

It's often useful to go the married filing separately route and amend later as married filing joint once the spouse gets the SSN, if that gets you money back, which it probably will. Don't be lazy; you must do this no later than the third year after you file the initial tax form.

Edited February 21, 2013 by speedwell

[Hilario 13]

My NRA spouse is from the Philippines I am the USC, I am going to try to send in her original voters ID(which has her picture on it) and birth certificate. We can not send in her passport because she only has one and also she is in the process of getting it changed along with her SSS card to married status and name change. I am not sure if these 2 ID's will suffice. Any light on the subject would be great. I did read the instructions for the ID requirements for w-7 so I think I will be ok. Thanks for bringing this topic up Speedwell.

[sherryandyashpal 7]

Someone asked me about filing single (that is, without head of household) and amending the tax return later to say married. No, folks, that's not the right way to do it and opens you up to questions like, why didn't you say you were married in the first place? Also, if for any reason your spousal visa interview takes place after April 15, you don't want to show the interviewing officer a 2012 tax form saying "single". In fact you might want to take a copy of the IRS instructions with you, if you do file as single head of household, to prove you weren't violating any laws or trying to say you weren't married. (Obviously this doesn't apply if you really were single on December 31, 2012.)

It's often useful to go the married filing separately route and amend later as married filing joint once the spouse gets the SSN, if that gets you money back, which it probably will. Don't be lazy; you must do this no later than the third year after you file the initial tax form.

Hi Speedwell.. Just popping in to say a HUGE thank you abt this post and answering my msg!!!

[speedwell 224]

My NRA spouse is from the Philippines I am the USC, I am going to try to send in her original voters ID(which has her picture on it) and birth certificate. We can not send in her passport because she only has one and also she is in the process of getting it changed along with her SSS card to married status and name change. I am not sure if these 2 ID's will suffice. Any light on the subject would be great. I did read the instructions for the ID requirements for w-7 so I think I will be ok. Thanks for bringing this topic up Speedwell.

Hilario, if she has a US Social Security number there's no reason to file a W-7. If the SSS is something other than a typo for Social Security (that is, the US kind), I apologize. The documentation you have sounds like it will be OK. You don't have to send in your passport if you have enough other documentation that you can send as originals or issuing-agency-certified copies.

Hi Speedwell.. Just popping in to say a HUGE thank you abt this post and answering my msg!!!

Of course! As a corporate trainer I know that where one has a question and asks it, ten have the same question and didn't ask.

[A & C 22]

THANK YOU THANK YOU THANK YOU Speedwell!!!! My Husband is getting prepared to file his taxes and some crazy person (<---- that is me being super nice ) told him that because I don't live in the US and I am not a Resident of the US yet, that he can just file as single.... And I had a mini melt down... okay it was more of a FREAKOUT, trying to stress the fact that he MUST file as married.

C

[AKSinghSingh79 143]

Wonderful post!

I just spoke to a CPA yesterday and he said that married filing jointly in my position would be impossible.

My husband has been to the US before and has worked so he already has a SSN. He last worked in the US in 2009.

Currently he is working as a teacher in India but his employer does not give him paystubs and receives nothing equivalent to a W-2. The CPA told me it would be impossible to file jointly without these documents.

So is our only option to file married separately then?

Edited February 21, 2013 by AKSinghSingh79

[N-o-l-a 7,168]

Thanks for the clear breakdown. I've been debating what we would file as and it is going to have be married filing separately.

[speedwell 224]

THANK YOU THANK YOU THANK YOU Speedwell!!!! My Husband is getting prepared to file his taxes and some crazy person (<---- that is me being super nice ) told him that because I don't live in the US and I am not a Resident of the US yet, that he can just file as single.... And I had a mini melt down... okay it was more of a FREAKOUT, trying to stress the fact that he MUST file as married.

C

Yeah, you exist, you're not the imaginary "girlfriend from Canada" in the joke (you're the wife now!! hahaha)... so he IS married!

Remember (this is for you and anyone else watching) that you must put the foreign spouse's SSN or ITIN if they have one, for instance because they were a resident in the past or they have or had a work visa.

Edited February 21, 2013 by speedwell

[speedwell 224]

Wonderful post!

I just spoke to a CPA yesterday and he said that married filing jointly in my position would be impossible.

My husband has been to the US before and has worked so he already has a SSN. He last worked in the US in 2009.

Currently he is working as a teacher in India but his employer does not give him paystubs and receives nothing equivalent to a W-2. The CPA told me it would be impossible to file jointly without these documents.

So is our only option to file married separately then?

AK, your situation may be different because your husband has a SSN. My husband did not have to provide documentation of his foreign income because of the amount and because it all fell under the foreign income exclusion (he had to specify a fairly exact amount though and provide the source's contact information, which is a government agency in the UK). I'm pretty sure that your husband may also fall under the foreign income exclusion, which has different documentation requirements. Please have a quick consultation with a CPA experienced with immigrant spouse matters. If one isn't available in your area, call one in a big immigrant city like Houston or LA or New York and ask to have a phone consultation, even if you have to pay a nominal fee.

Edited February 21, 2013 by speedwell

[speedwell 224]

Thanks for the clear breakdown. I've been debating what we would file as and it is going to have be married filing separately.

Nola, you may also fall under the foreign income exclusion... in fact I've been reading about it and I am almost certain you do. Read about it on the IRS site and decide. It depends on certain foreign residency and income source considerations. There is an extra form you must file but it's just one or two pages and pretty straightforward.

Edited February 21, 2013 by speedwell

[calygirl75 12]

I efiled. Married in November of 2012. Husband in Cuba (non-resident alient). I'm the USC and have filed a I-130 for a CR1. I called the IRS and read up on the subject. I chose to file as Head of Household because I met the requirements (my mother is a dependent). Hopefully next year we are together and not waiting

[speedwell 224]

I efiled. Married in November of 2012. Husband in Cuba (non-resident alient). I'm the USC and have filed a I-130 for a CR1. I called the IRS and read up on the subject. I chose to file as Head of Household because I met the requirements (my mother is a dependent). Hopefully next year we are together and not waiting

Good! I hope so too

Yes, you can e-file if your spouse has a SSN or ITIN already, or if you are not requesting an ITIN. You have to file on paper if you are requesting an ITIN by filing W-7 along with your tax form, and it has to go to the special address in Austin.

[AshleyLCBaker 7]

Ok, so, I did exactly what you just said not to, because my dad's stupid accountant told me to. I've lived in Australia for the past five years and didn't know until we started this visa process that I still needed to file a US return. My husband has never lived in the US, so the accountant said just to file single. I attached 2555-EZ's to all my returns and I was basically able to zero out my income for tax purposes, since I'm a resident of Australia and made less than $90,000ish.

Because my SSN is under my maiden name and the last time I lived in the US I wasn't married, I also included a copy of our marriage cert and my Australian passport, to show my name change and that I'm a bona fide resident of Australia. So, I showed I'm obviously married, and obviously wasn't trying to pull anything disingenuous or sneaky. I'm just obviously stupid. My husband and I have been married for more than four years and have a child, so I don't think USCIS could accuse us of fraud based on my putting single on my returns.

Basically my question to you nice people is: what should I do? Should I try to contact the IRS and amend? Will it cause major issues with either the IRS or USCIS? I really didn't mean to do the wrong thing, I've just never done US taxes before and obviously took some bad advice!

[speedwell 224]

Ok, so, I did exactly what you just said not to, because my dad's stupid accountant told me to. I've lived in Australia for the past five years and didn't know until we started this visa process that I still needed to file a US return. My husband has never lived in the US, so the accountant said just to file single. I attached 2555-EZ's to all my returns and I was basically able to zero out my income for tax purposes, since I'm a resident of Australia and made less than $90,000ish.

Because my SSN is under my maiden name and the last time I lived in the US I wasn't married, I also included a copy of our marriage cert and my Australian passport, to show my name change and that I'm a bona fide resident of Australia. So, I showed I'm obviously married, and obviously wasn't trying to pull anything disingenuous or sneaky. I'm just obviously stupid. My husband and I have been married for more than four years and have a child, so I don't think USCIS could accuse us of fraud based on my putting single on my returns.

Basically my question to you nice people is: what should I do? Should I try to contact the IRS and amend? Will it cause major issues with either the IRS or USCIS? I really didn't mean to do the wrong thing, I've just never done US taxes before and obviously took some bad advice!

Breathe, you're not in trouble and you're NOT STUPID. You don't need to call anyone. File amended returns for the last three years using 1040-X and any schedules, such as to claim foreign income exclusion because you are and were a bona fide Australia resident. You probably won't have to pay penalties since you probably won't have a tax liability as a result of the amended returns, unless you have enough income that doesn't fall under the exclusion. Use the amended returns for your Affidavit of Support and have hubby take the correct 2012 return to the interview. Breathe again.

Edited February 21, 2013 by speedwell