Head of the household and NVC stage (I-130)

[SierraTenTango 37]

Hello,

 

I can't seem to find direct response t my question so I'll just drop it here (hopefully the right place). Can someone help, please?

 

My and my husband are during I-130 process. We got approved in USCIS lately and now gathering documents for NVC stage. His tax person said that since I do not have ITIN nor SSN he can't file married, filing separately and did it as Head of the household.

 

I found this information (not on the official US Government site though!😞

"The petitioning spouse is required to provide the tax return with the visa application or the application for adjustment of status. The adjudicator deciding the case will review the tax return for the filing status. When the immigration officer sees the filing status of Head of Household is selected by a petitioning spouse, it informs the immigration officer that the spouses did not actually live together during the last 6 months of the tax year. This may be understandable when the immigrating spouse is still waiting in the home country for a consulate interview. However, it is not allowed for married couples who were living together in the U.S. during that time."

So does that mean we are OK? Because obviously, I am not living with my husband since I am in my home country

Thanks in advance for all your help!

 

[Dee elle 1,368]

I am not a tax expert.... but this is what I found on the IRS website regarding filing as HoH ... and it states that you must meet ALL of the conditions, not just some..... otherwise he filed MFS  

 

https://www.1040.com/tax-guide/faq/can-a-married-person-claim-the-head-of-household-filing-status/

 

To qualify for the Head of Household filing status while married, you must:

• File your taxes separately from your spouse
• Pay more than half of the household expenses
• Not have lived with your spouse for the last 6 months of the year
• Provide the principle home of a qualifying dependent
• Claim an exemption for your dependent

If you meet all of these requirements, you may file as Head of Household while married.

Edited August 22, 2018 by Dee elle

[geowrian 22,337]

The correct filing status would have been Married Filing Separately (MFS), unless he has a non-spouse dependent (in which HOH applies). He could have either gone for an ITIN or written "NRA" instead of his spouse's SSN/ITIN on the 1040. This is noted in the 1040 instructions.

 

It won't hurt his ability to be a sponsor or get the visa, but it is something that should be corrected (assuming HOH was wrong, as described above).

[arken 4,197]

I also think your husband cannot file as head of household unless he has a qualifying dependent. A spouse is not a dependent. Not sure if it affects immigration wise.

 

Like others said, the best was to file married filing separately for which your ITIN or SSN was not required.

[SierraTenTango 37]

5 minutes ago, geowrian said:

The correct filing status would have been Married Filing Separately (MFS), unless he has a non-spouse dependent (in which HOH applies). He could have either gone for an ITIN or written "NRA" instead of his spouse's SSN/ITIN on the 1040. This is noted in the 1040 instructions.

 

It won't hurt his ability to be a sponsor or get the visa, but it is something that should be corrected (assuming HOH was wrong, as described above).

Yes, He has a daughter who he claims ad dependant. 

 

And I am reading the instructions on the IRS site and it states clearly that : "You cannot enter “NRA” on line 3 if your Spouse does not have a SSN or an ITIN. "

https://www.irs.gov/e-file-providers/line-by-line-instructions-free-file-fillable-forms#F1040

 

I'm confused ;( So he can or can't he?

[SierraTenTango 37]

3 minutes ago, arken said:

I also think your husband cannot file as head of household unless he has a qualifying dependent. A spouse is not a dependent. Not sure if it affects immigration wise.

 

Like others said, the best was to file married filing separately for which your ITIN or SSN was not required.

I understand but on the IRS page it says he cannot fill it as "NRA" where he should put ITIN or SSN. So can he or can't he? I mean everyone on this forum writes that they are placing NRA there but then on the official website it says completely something different and I am so confused right now... 

[geowrian 22,337]

7 minutes ago, SierraTenTango said:

Yes, He has a daughter who he claims ad dependant.

If he meets the criteria as noted above, then HOH was fine and not an issue.

 

Quote

And I am reading the instructions on the IRS site and it states clearly that : "You cannot enter “NRA” on line 3 if your Spouse does not have a SSN or an ITIN. "

https://www.irs.gov/e-file-providers/line-by-line-instructions-free-file-fillable-forms#F1040

Those are instructions for the fillable forms. That note is that the fillable PDF file won't let you enter "NRA", not that you are not supposed to use "NRA" when the circumstances apply. It just means you would need to write it in (and therefore can't e-File).

 

From the linked URL you provided:

"Do not confuse or substitute this page with or for the official IRS instructions for the form or schedule you are completing. Always consult the form and schedule instructions. "

From the 1040 instructions: https://www.irs.gov/pub/irs-pdf/i1040gi.pdf (page 14, covering MFS):

"Be sure to enter your spouse's SSN or ITIN on Form 1040. If your spouse doesn't have and isn't required to have an SSN or ITIN, enter “NRA."

 

Edit: Taxes are far more complicated than most immigration cases. Even that is probably a candidate for understatement of the year...but it is what it is.

Edited August 22, 2018 by geowrian

[SierraTenTango 37]

3 minutes ago, geowrian said:

If he meets the criteria as noted above, then HOH was fine and not an issue.

 

Those are instructions for the fillable forms. That note is that the fillable PDF file won't let you enter "NRA", not that you are not supposed to use "NRA" when the circumstances apply. It just means you would need to write it in.

 

From the linked URL you provided:

"Do not confuse or substitute this page with or for the official IRS instructions for the form or schedule you are completing. Always consult the form and schedule instructions. "

From the 1040 instructions: https://www.irs.gov/pub/irs-pdf/i1040gi.pdf (page 14, covering MFS):

"Be sure to enter your spouse's SSN or ITIN on Form 1040. If your spouse doesn't have and isn't required to have an SSN or ITIN, enter “NRA."

Oh my God, thank you so much you are a lifesaver. God bless you!

[Dee elle 1,368]

7 minutes ago, geowrian said:

 Taxes are far more complicated than most immigration cases. Even that is probably a candidate for understatement of the year...but it is what it is.

Totally agree!! Give me USCIS documents any day !