Tax Marital Status with employer if spouse is a non-resident alien

[r060106 109]

To clarify some of the above comments :

Whatever status you claim with your employer only has to do with how much $ they will withhold from your paycheck. It has nothing to do with the filing status that you will eventually claim on your tax return. Withholding for single is a higher percentage of your income than for a married person. Therefore it is more probable that you would get a larger refund if you are withheld as single but then file as married.

To apply for an ITIN you must send in a certified copy of the spouse's passport, issued by the passport agency of her country. Not the passport itself.

Also, generally you can only apply for an ITIN when you file your tax return. In your case this means when you file next spring for the 2013 tax year. So you have plenty of time to get the certified copy of the passport to apply for the ITIN. BTW, with a little bit of luck, your spouse may already be here and have a SSN by April 15, 2014 which would render the ITIN unnecessary. Furthermore, if you have no payment due on your tax return (i,e, you have a refund due) you will not be penalized by the IRS for not filing by April 15th....the deadline for a penalty is April 15th only if you owe taxes...not if they owe you !

That's what I thought. Just wanted to make sure.

What exactly qualifies as a certified copy? I'm assuming it's not just a photocopy that is notarized, right? My wife doesn't think Poland has such a thing. So I'm thinking we're kind of screwed in that case. If we can, we'll file for the ITIN when I send in our taxes. We have to send a paper copy then, right?

A little luck? We plan on submitting the I-130 at the end of August and I read it's taking 11 months now, which is kind of depressing. :/ Is it extremely uncommon to get anything processed so fast, by April? That would be amazing but we're not holding our breath. I'm just ready for it to take longer than a year. Really sucks, but what am I going to do.

Thanks for the info!

[NikLR 13,227]

Wherever she got her passport from, she should inquire with them as to if she can get a certified copy of her passport.

[slvrfx576 15]

Considering the time line of our OP, I think that he should file "married filing jointly" next spring and apply for ITIN at that time. That way he will have a jointly filed 2012 return to send in with his Affidavit of Support. Yes, this means getting a copy of spouse's passport certified by its issuing agency.

If getting the passport copy is impossible, then I would go the route of filing an extension as has been suggested. You do not need an ITIN to do this. In the space on the extension form (4868 ?)for your spouse's SSN simply write "ITIN to be requested". This extension will give you 6 additional months to file and a legitimate reason why your most recent year of taxes filed is not 2013 when you file your AOS.

Do not file single as someone else has suggested. The IRS considers a married person filing as single to be an improperly filed return. The proper status for a married person to file without including his spouses income is "married filing separately" as has been correctly pointed out here already. NVC or consulate may not catch such a discrepancy, especially if an amended return was filed, but why start out life in the US by trying to skirt the rules ?

[r060106 109]

Considering the time line of our OP, I think that he should file "married filing jointly" next spring and apply for ITIN at that time. That way he will have a jointly filed 2012 return to send in with his Affidavit of Support. Yes, this means getting a copy of spouse's passport certified by its issuing agency.

If getting the passport copy is impossible, then I would go the route of filing an extension as has been suggested. You do not need an ITIN to do this. In the space on the extension form (4868 ?)for your spouse's SSN simply write "ITIN to be requested". This extension will give you 6 additional months to file and a legitimate reason why your most recent year of taxes filed is not 2013 when you file your AOS.

Do not file single as someone else has suggested. The IRS considers a married person filing as single to be an improperly filed return. The proper status for a married person to file without including his spouses income is "married filing separately" as has been correctly pointed out here already. NVC or consulate may not catch such a discrepancy, especially if an amended return was filed, but why start out life in the US by trying to skirt the rules ?

Alright, I'll do that. I honestly don't think Poland gives out certified copies of their passports, as I think my wife mentioned that to me. I think there is other evidence you can submit besides the passport, like an ID card and foreign drivers license. Do you know anything about that?

You make a very good point. I'm thinking I'll file "married filing jointly" and make everything official with the feds. Thanks!

[NikLR 13,227]

You have a choice, MFS or MFJ. You can amend the MFS to MFJ after your wife has an SSN if you choose.

[slvrfx576 15]

Yes, other documents are acceptable, but the passport is the only "stand alone" document, otherwise you must submit 2 documents from this chart, one of which must be a photo id, and they must be the originals or copies certified by the issuing agency (like the passport requirement) :

U.S. Citizenship and Immigration Services (USCIS) photo identification x x

Visa issued by U.S. Department of State x x

U.S. driver's license x

U.S. military identification card x

Foreign driver's license x

Foreign military identification card x x

National identification card (must be current and contain name, photograph, address, date of birth, and expiration date) x x

U.S. state identification card x

Foreign voter's registration card x x

Civil birth certificate x* x

Medical records (valid only for dependents under age 6) x* x

School records (valid only for dependents under age 14 (under age 18 if a student)) x* x

Also, the US Embassy/Consulate in Poland may be able to authenticate your spouse's documents. (This is per IRS instructions, but call Embassy to check)

BUT you can avoid all of this by applying in person (jointly) at IRS Taxpayer Assistance Center in Milwaukee !!! They will examine your original documents and return them to you immediately. This is a new service as of 1/31/2013. So file an extension and apply in person by October 15th, 2014 and no need to get certified copies of anything !

[r060106 109]

Yes, other documents are acceptable, but the passport is the only "stand alone" document, otherwise you must submit 2 documents from this chart, one of which must be a photo id, and they must be the originals or copies certified by the issuing agency (like the passport requirement) :

U.S. Citizenship and Immigration Services (USCIS) photo identification x x

Visa issued by U.S. Department of State x x

U.S. driver's license x

U.S. military identification card x

Foreign driver's license x

Foreign military identification card x x

National identification card (must be current and contain name, photograph, address, date of birth, and expiration date) x x

U.S. state identification card x

Foreign voter's registration card x x

Civil birth certificate x* x

Medical records (valid only for dependents under age 6) x* x

School records (valid only for dependents under age 14 (under age 18 if a student)) x* x

Also, the US Embassy/Consulate in Poland may be able to authenticate your spouse's documents. (This is per IRS instructions, but call Embassy to check)

BUT you can avoid all of this by applying in person (jointly) at IRS Taxpayer Assistance Center in Milwaukee !!! They will examine your original documents and return them to you immediately. This is a new service as of 1/31/2013. So file an extension and apply in person by October 15th, 2014 and no need to get certified copies of anything !

Wow, great to hear! Thank you very much! We'll probably do that.

[indiana_sweetie 120]

Regarding the ITIN, it was difficult, but let me list the mistakes and final success we had.

The first time (because of a misunderstanding) my hubby made the copy of his passport himself and had it stamped. Of course it got rejected. After we figured out why, we were able to get the copy done correctly. I happened to be visiting him in Kosovo, so we did this together.

Issuing agency----no one at the city or government agencies could figure out who that was, so we finally ended up at the Municipality. A color copy was made and stamped front and back and signed front and back.

When I got home I sent the certified copy, the W-7 form and my taxes, and also included a letter stating that I was present when the copy was made and I witnessed the signatures. It was initially denied but then they reversed their decision and issued the ITIN.

[indiana_sweetie 120]

What slvrfx576 said....do that!

[r060106 109]

What slvrfx576 said....do that!

Thanks for the advice!!