Filing Tax during green card pending

[Greensoon 0]

Hi there, first time user of VJ. Thanks for any inputs for our situation!

It is about time for 2015 tax return. I came US as F1 student and applied for green card in 2015 and I am right now approved with 485 EAD at the beginning of 2016 while green card is still pending. My I-20 was valid until my EAD approved.

Also my wife and i were married in 2014 while both of us were still F1. She was working in CA for 8 months with her OPT-EAD/EAD extension and then joined with me for green card filing. Now both of us got our EAD approved in 2016 while green card is pending.

My big question is, are we counted as Resident Alien for tax purpose? Should we file the tax return as Married Filing Jointly?

Thanks for the help!

[Pitaya 2,577]

~Moved from Fam.-based AOS to Taxes & Finances During US Immigration Forum~

~Inquiry about income tax filing status~

[newacct 688]

So both of you were in F1 status for all of 2015? How many years have you guys been in the US as students? Students are exempt from the Substantial Presence Test unless they've been exempt for any part of 5 previous calendar years. Basically, this means if either of you came on F1 during 2010 or earlier, that person is a resident alien for 2015, and can file jointly with the spouse. However, if both of you came during 2011 or later, then both of you are nonresident aliens for all of 2015 and there is no way to file jointly.

[Greensoon 0]

Thank you for replying!

Both of us came to US in 2011. The question i have here is if USCIS will find trouble with us if we are filing out tax return separately and as non-resident aliens ( marriage genuineness and immigration intention). We are AOS after 485 is pending in 2015 but before that my wife was with her F1 OPT extension and i was with my F1. According to IRS, once your 485 is pending, you shall not count yourself as F1 anymore.

So both of you were in F1 status for all of 2015? How many years have you guys been in the US as students? Students are exempt from the Substantial Presence Test unless they've been exempt for any part of 5 previous calendar years. Basically, this means if either of you came on F1 during 2010 or earlier, that person is a resident alien for 2015, and can file jointly with the spouse. However, if both of you came during 2011 or later, then both of you are nonresident aliens for all of 2015 and there is no way to file jointly.

[newacct 688]

According to IRS, once your 485 is pending, you shall not count yourself as F1 anymore.

Where does it say that? You are in F1 status until you violated the terms of F1 status.

[Nich-Nick 3,354]

Hi there, first time user of VJ. Thanks for any inputs for our situation!

It is about time for 2015 tax return. I came US as F1 student and applied for green card in 2015 and I am right now approved with 485 EAD at the beginning of 2016 while green card is still pending. My I-20 was valid until my EAD approved.

Also my wife and i were married in 2014 while both of us were still F1. She was working in CA for 8 months with her OPT-EAD/EAD extension and then joined with me for green card filing. Now both of us got our EAD approved in 2016 while green card is pending.

My big question is, are we counted as Resident Alien for tax purpose? Should we file the tax return as Married Filing Jointly?

Thanks for the help!

I suggest you read Publication 519 https://www.irs.gov/pub/irs-pdf/p519.pdf to get all the IRS facts. Chapter 1 covers Resident vs Nonresident aliens.

I don't believe you are resident aliens yet, so can not file jointly. Your filing status will be "married nonresident alien" so USCIS will see you are claiming to be married. You won't be the first they've ever seen of this situation.