W-4/tax filing status with K1 spouse

[Kathryn41 3,205]

Thank you, KitKat, for correcting the previous errors in the post that stated the op's husband was out of status when his K-1 visa expired. Since he has filed the AOS application, his status is considered "AOS applicant" and he is considered to have legal status in the US. To answer the OP's other question - how to prove his status is legal if it is required - one thing he can do is carry a photocopy of the NOA1 for the AOS with him verifying he has an application in process. I don't expect he will be in a position where he will have to prove on the spot that he is legally here, however, that is one means that he has at his disposal while waiting for his EAD.

[am1996 0]

Your resident vs. non-resident alien status is dependent on you passing one of the two tests that being the "Green Card" test or the "Substantial Presence test.

I am anything but an expert in this field, but my understanding is that even if you are a "non-resident alien" under the Green card test and the Substantial Presence test, you still have the option of opting in to be treated as a US resident (you can only choose that option if you are a non-resident alien spouse of a US citizen or of a resident alien). As such, if my understanding of this issue is correct, the OP's husband would presumably not care about the outcome of the tests above since, regardless of their outcome, he'd just opt in to be treated as a US resident for tax purposes.

[payxibka 10,045]

Your resident vs. non-resident alien status is dependent on you passing one of the two tests that being the "Green Card" test or the "Substantial Presence test.

I am anything but an expert in this field, but my understanding is that even if you are a "non-resident alien" under the Green card test and the Substantial Presence test, you still have the option of opting in to be treated as a US resident (you can only choose that option if you are a non-resident alien spouse of a US citizen or of a resident alien). As such, if my understanding of this issue is correct, the OP's husband would presumably not care about the outcome of the tests above since, regardless of their outcome, he'd just opt in to be treated as a US resident for tax purposes.

Yes, there is one exception... but it is NOT automatic and has to be specifically elected. If you do not elect it then the two prong test stands.

[am1996 0]

Yes, there is one exception... but it is NOT automatic and has to be specifically elected. If you do not elect it then the two prong test stands.

Agreed. My point is that if the OP's husband will either use the tests above or an affirmative election to be treated as a US resident for tax purposes in 2007, then he can just ignore all the W-4 instructions for the non-residents. In other words, he does NOT need to worry that the IRS will force him to be treated as a non-US resident for tax purposes. Edited February 12, 2007 by am1996

[payxibka 10,045]

Yes, there is one exception... but it is NOT automatic and has to be specifically elected. If you do not elect it then the two prong test stands.

Agreed. My point is that if the OP's husband will either use the tests above or an affirmative election to be treated as a US resident for tax purposes in 2007, then he can just ignore all the W-4 instructions for the non-residents. In other words, he does NOT need to worry that the IRS will force him to be treated as a non-US resident for tax purposes.

Based on the apparent facts at hand.... Agreed.

I was presenting the overall test criteria for the benefit of other thread readers

Edited February 12, 2007 by fwaguy

[am1996 0]

Again, in the vast majority of the situations out there, people use large tax refunds as a financial planning tool because they do not have the financial discipline required to set money aside every month. If that's the case, it is a rather expensive way to accomplish your goals, since you are simply letting the government hold the money for you interest free. Instead, that money could be used either to pay down your debts and, in the process, reduce interest charges, or to be placed in a high interest bearing account.

Regardless, this is all beyond the scope of this thread. If you are interested in learning ways to supplement your income or to organize your finances, you may want to check out websites such as www.fatwallet.com (Finance forum), which focus on these topics.

I apologize for reviving this old thread, but I thought I'd post a link to an interesting thread (http://www.fatwallet.com/t/52/715371/): What's the most money you've owed in personal federal and state income taxes WITHOUT UNDERPAYMENT PENALTY? Poster EugeneV just paid an almost $26,000 tax bill without an underpayment penalty and has, in the process, MADE approximately $770 in interest on that money. Not a bad bonus for floating Uncle Sam's money interest-free! That would be enough to pretty much take care of most AOS fees Edited April 16, 2007 by am1996

[Yodrak 7]

1HappyGuy,

No, it will not. When a visa expires has nothing to do with when an alien who is in the USA goes out of status.

It does have something to do with an alien who is not in the USA coming to a US POE and asking to granted entry.

Yodrak

Your husband's visa expiration date will mean that he is out of status. .....