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Filed: K-1 Visa Country: Vietnam
Timeline
Posted

I am the USC and I have 2 children. My husband has one child. He came over on K1 and we married June 2014. AOS was done and conditional GC was approved in August. For taxes 2014 we filed joint. However, for 2015 things are currently going up and down in our relationship. Legally he is still registered at my house, however, physically he has not really been home

Taxes are to be filed soon and according to HoH I have to be considered unmarried. Since he has not been living at my house (even though he's registered) Is it possible to file HoH and if things begin to get better (which hopefully it will before we file ROC) I just do amend? Or would I need to file MFS?

I'm going to assume if I file for HoH his return would need to be MFS? Or would he also be able to do HoH since he has his daughter too?

I havent seen another situation like this so unsure of what I need to do. Any guidance or assistance would be greatly appreciated. Thanks in advance :D

I-129F sent on 12/18/2012
Delivery confirmation confirmed from USPS 12/20/2012
Text/email NOA1 received 12/26/2012 Off to VSC we go!
Check cashed 12/28/2012
NOA1 Hardcopy received 12/29/2012 Priority Date 12/21/2012
Touched, still in Initial Review 01/02/2013

Touched, still in Initial Review 05/24/2013 transferred

Touched, still in Initial Review 05/29/2013 transferred to local office (New Orleans?)

Touched, still in Initial Review 05/30/2013 File now processing

NOA2!!! 06/19/2013

NOA2 Hardcopy received 06/22/2013

Touched, 07/10/2013 sent to DOS

Received case number from NVC 07/15/2013

Case sent to US Consulate in Ho Chi Minh City, Vietnam 07/30/2013

Sent online form to Us Consulate to inquire about packet 3 08/20/2013

Packet 3 Received @ consulate 9/26/2013

Packet 4 Sent via email 01/03/2014

Interview Date 01/27/2014 (submitted requested documents and medical exams records received 03/30 )

VISA APPROVED (Received in hand on April 22)
May 18, 2014 Arrive in US

Wedding date 06/02/2015

AOS Sent: TBD

Filed: K-1 Visa Country: Mexico
Timeline
Posted

First off I would highly suggest attempting to talk this over with your husband. Once you file an original return it becomes a permanent record.

If you are legally married and file HOH, you are indicating you are "considered unmarried" and stating the following: "Your spouse didn't live in your home during the last 6 months of the tax year."

So if he and his daughter haven't lived in your home during the last 6 mos. of 2015, he can also be eligible to file HOH on his own return and likewise he'd be stating the same thing.

Maria ~ U.S. Citizen

 

K-1 & K-2 Process (Completed in 4 mos. 8 days)

 

1/19/16: I-129F Package recv'd by USCIS via FedEx overnight

4/1/16: NOA2 Approval :dancing:

5/17/16: Interview :star: - APPROVED :dance:

5/25/16 Visas in hand! :thumbs: 

Aug 2016: Wedding (L)

AOS/EAD/AP Process, K-1 & K-2 (Completed in 4 mos. 15 days)

 

9/21/16: Package recv'd by USCIS via FedEx overnight [Day 1]

10/24/16: AOS Cases (I-864) RFIE recv'd hardcopy [Day 29]

12/23/16: AOS Case Status Updates - Interview Scheduled, text recv'd [Day 94] :dancing:

1/17/17: EAD/AP Combo Card recv'd via USPS Priority Mail [Day 119]

1/27/17: AOS Interview :star: - APPROVED!! :dance:  [Day 129 / 120 w/ 9day RFIE delay]

1/27/17: AOS Case status update - Approved | 1/31/17: New Card in Production | 2/1/17: Card Was Mailed

2/4/17: Green Cards Arrived :thumbs:

ROC Process, Spouse & 2 Step-Sons (Completed in 23 mos. 22 days)

 

1/25/19: Package recv'd by USCIS via FedEx overnight [Day 1]

1/29/19: NOA notice date, text & email recv'd, routed to CSC

2/1/19: NOA 18mo. Extension Letter arrived in the mail, for wife only [Day 7]

3/13/19: Filed SR for non-receipt of NOA for I-751A dependents [Day 48] | 3/21/19: Recv'd NOA for 2 stepsons [Day 56]

4/29/19: Biometrics (Scheduled) Appt Completed [Day 95]

8/28/20: Case Status Update - RFE [Day 582 ~ 19 mos. 4 days] | 11/20/20: Case Status Update - RFE response recv'd [Day 666 ~ 21 mos. 27 days]

1/7/21: Case Status Update - New Card in Production :dance: [Day 714 ~ 23 mos. 14 days] 

1/15/21: Green Cards Arrived :thumbs:[Day 722 ~ 23 mos. 22 days]

Naturalization Process for Spouse - in research stage (Completed in X mos. X days)

 

8/7/24: started research and prep for upcoming filing of N-400 Online

TBD: Filed N-400 Online

 :)

Filed: K-1 Visa Country: Vietnam
Timeline
Posted

Thanks for the response. I've talked wit him about it. He's up for ROC in May and we were unsure of if filing HOH would hinder his paperwork in the long run. I'm not sure if he's able to claim his daughter yet cause she doesn't have Ssn or TIN yet either. But if i was to claim HOH and he claims MFS would that work for his ROC?

I-129F sent on 12/18/2012
Delivery confirmation confirmed from USPS 12/20/2012
Text/email NOA1 received 12/26/2012 Off to VSC we go!
Check cashed 12/28/2012
NOA1 Hardcopy received 12/29/2012 Priority Date 12/21/2012
Touched, still in Initial Review 01/02/2013

Touched, still in Initial Review 05/24/2013 transferred

Touched, still in Initial Review 05/29/2013 transferred to local office (New Orleans?)

Touched, still in Initial Review 05/30/2013 File now processing

NOA2!!! 06/19/2013

NOA2 Hardcopy received 06/22/2013

Touched, 07/10/2013 sent to DOS

Received case number from NVC 07/15/2013

Case sent to US Consulate in Ho Chi Minh City, Vietnam 07/30/2013

Sent online form to Us Consulate to inquire about packet 3 08/20/2013

Packet 3 Received @ consulate 9/26/2013

Packet 4 Sent via email 01/03/2014

Interview Date 01/27/2014 (submitted requested documents and medical exams records received 03/30 )

VISA APPROVED (Received in hand on April 22)
May 18, 2014 Arrive in US

Wedding date 06/02/2015

AOS Sent: TBD

Filed: K-1 Visa Country: Mexico
Timeline
Posted

If his daughter is his dependent then he absolutely is eligible to claim her. All he has to do is file the application for the ITIN.

I'm not at the ROC stage yet but I'm pretty sure one of the conditions/requirements is that you have been living together. Unless there's an exception to that, I'm not sure.

Maria ~ U.S. Citizen

 

K-1 & K-2 Process (Completed in 4 mos. 8 days)

 

1/19/16: I-129F Package recv'd by USCIS via FedEx overnight

4/1/16: NOA2 Approval :dancing:

5/17/16: Interview :star: - APPROVED :dance:

5/25/16 Visas in hand! :thumbs: 

Aug 2016: Wedding (L)

AOS/EAD/AP Process, K-1 & K-2 (Completed in 4 mos. 15 days)

 

9/21/16: Package recv'd by USCIS via FedEx overnight [Day 1]

10/24/16: AOS Cases (I-864) RFIE recv'd hardcopy [Day 29]

12/23/16: AOS Case Status Updates - Interview Scheduled, text recv'd [Day 94] :dancing:

1/17/17: EAD/AP Combo Card recv'd via USPS Priority Mail [Day 119]

1/27/17: AOS Interview :star: - APPROVED!! :dance:  [Day 129 / 120 w/ 9day RFIE delay]

1/27/17: AOS Case status update - Approved | 1/31/17: New Card in Production | 2/1/17: Card Was Mailed

2/4/17: Green Cards Arrived :thumbs:

ROC Process, Spouse & 2 Step-Sons (Completed in 23 mos. 22 days)

 

1/25/19: Package recv'd by USCIS via FedEx overnight [Day 1]

1/29/19: NOA notice date, text & email recv'd, routed to CSC

2/1/19: NOA 18mo. Extension Letter arrived in the mail, for wife only [Day 7]

3/13/19: Filed SR for non-receipt of NOA for I-751A dependents [Day 48] | 3/21/19: Recv'd NOA for 2 stepsons [Day 56]

4/29/19: Biometrics (Scheduled) Appt Completed [Day 95]

8/28/20: Case Status Update - RFE [Day 582 ~ 19 mos. 4 days] | 11/20/20: Case Status Update - RFE response recv'd [Day 666 ~ 21 mos. 27 days]

1/7/21: Case Status Update - New Card in Production :dance: [Day 714 ~ 23 mos. 14 days] 

1/15/21: Green Cards Arrived :thumbs:[Day 722 ~ 23 mos. 22 days]

Naturalization Process for Spouse - in research stage (Completed in X mos. X days)

 

8/7/24: started research and prep for upcoming filing of N-400 Online

TBD: Filed N-400 Online

 :)

Filed: Timeline
Posted (edited)

OP, I just realized both you and your spouse have your own children. That changes things a lot - following are the regs.

If you were still legally married as of December 31, you are considered unmarried (and therefore eligible for Head of Household) if all 5 of these conditions apply:

  1. You won't be filing jointly with your spouse; and
  2. Your spouse didn't live in your home after June (temporary absences due to illness, school, vacation, business, or military service don't count); and
  3. Your home was your child's, stepchild's, or foster child's main home for more than half the year; and
  4. You paid more than half the costs of keeping up your home during the tax year; and
  5. You meet the qualifications to claim the child as your dependent, even if the other (noncustodial) parent is actually claiming the child as a dependent on their return.

You can also be "considered unmarried" for Head of Household if your spouse was a nonresident alien at any time during the tax year and you're not treating them as a resident alien.

Married filers who are "considered unmarried" cannot file with Head of Household status if their dependent is somebody other than a child, for example a parent.

Edited by JRF
Filed: K-1 Visa Country: Vietnam
Timeline
Posted

OP, I just realized both you and your spouse have your own children. That changes things a lot - following are the regs.

If you were still legally married as of December 31, you are considered unmarried (and therefore eligible for Head of Household) if all 5 of these conditions apply:

  1. You won't be filing jointly with your spouse; and
  2. Your spouse didn't live in your home after June (temporary absences due to illness, school, vacation, business, or military service don't count); and
  3. Your home was your child's, stepchild's, or foster child's main home for more than half the year; and
  4. You paid more than half the costs of keeping up your home during the tax year; and
  5. You meet the qualifications to claim the child as your dependent, even if the other (noncustodial) parent is actually claiming the child as a dependent on their return.

You can also be "considered unmarried" for Head of Household if your spouse was a nonresident alien at any time during the tax year and you're not treating them as a resident alien.

Married filers who are "considered unmarried" cannot file with Head of Household status if their dependent is somebody other than a child, for example a parent.

Legally he is registered at my house. His permanent address is at my address, but physically he has not been living with me. I'm not sure if he and I are both eligible for HoH since we each have our own children and we have been living apart. His daughter has her green card but no social security # or TIN as of now. We may need to get her a number if he is to claim her.

I suggest reading the following about HOH and marital status:

https://www.irs.gov/publications/p17/ch02.html#en_US_2015_publink1000170792

I have read it and I do qualify for HoH. I am just unsure if he needs to be MFS, single, or HoH as well since he has his daughter.

Per my understanding if I file HoH he is ineligible to file MFS since we would be "considered unmarried"

I-129F sent on 12/18/2012
Delivery confirmation confirmed from USPS 12/20/2012
Text/email NOA1 received 12/26/2012 Off to VSC we go!
Check cashed 12/28/2012
NOA1 Hardcopy received 12/29/2012 Priority Date 12/21/2012
Touched, still in Initial Review 01/02/2013

Touched, still in Initial Review 05/24/2013 transferred

Touched, still in Initial Review 05/29/2013 transferred to local office (New Orleans?)

Touched, still in Initial Review 05/30/2013 File now processing

NOA2!!! 06/19/2013

NOA2 Hardcopy received 06/22/2013

Touched, 07/10/2013 sent to DOS

Received case number from NVC 07/15/2013

Case sent to US Consulate in Ho Chi Minh City, Vietnam 07/30/2013

Sent online form to Us Consulate to inquire about packet 3 08/20/2013

Packet 3 Received @ consulate 9/26/2013

Packet 4 Sent via email 01/03/2014

Interview Date 01/27/2014 (submitted requested documents and medical exams records received 03/30 )

VISA APPROVED (Received in hand on April 22)
May 18, 2014 Arrive in US

Wedding date 06/02/2015

AOS Sent: TBD

Filed: K-1 Visa Country: Vietnam
Timeline
Posted

If his daughter is his dependent then he absolutely is eligible to claim her. All he has to do is file the application for the ITIN.

I'm not at the ROC stage yet but I'm pretty sure one of the conditions/requirements is that you have been living together. Unless there's an exception to that, I'm not sure.

We are legally married but things have been up & down between us since I had a lot of personal life changes. We were living together but currently we are not living together.

I-129F sent on 12/18/2012
Delivery confirmation confirmed from USPS 12/20/2012
Text/email NOA1 received 12/26/2012 Off to VSC we go!
Check cashed 12/28/2012
NOA1 Hardcopy received 12/29/2012 Priority Date 12/21/2012
Touched, still in Initial Review 01/02/2013

Touched, still in Initial Review 05/24/2013 transferred

Touched, still in Initial Review 05/29/2013 transferred to local office (New Orleans?)

Touched, still in Initial Review 05/30/2013 File now processing

NOA2!!! 06/19/2013

NOA2 Hardcopy received 06/22/2013

Touched, 07/10/2013 sent to DOS

Received case number from NVC 07/15/2013

Case sent to US Consulate in Ho Chi Minh City, Vietnam 07/30/2013

Sent online form to Us Consulate to inquire about packet 3 08/20/2013

Packet 3 Received @ consulate 9/26/2013

Packet 4 Sent via email 01/03/2014

Interview Date 01/27/2014 (submitted requested documents and medical exams records received 03/30 )

VISA APPROVED (Received in hand on April 22)
May 18, 2014 Arrive in US

Wedding date 06/02/2015

AOS Sent: TBD

 
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