Apply for ITIN for 2021 taxes or hope to get SSN?

[Shadaryia 11]

Good day everyone!     I am still trying to get everything prepared to file AOS for my spouse.   We went to a tax preparer last week and decided not to amend my 2020 taxes and apply for him to get an ITIN because we were going to owe almost $4000 to the IRS because my spouse does not have a SSN (I filed head of household and will lose earned income credits etc)    So now I am trying to decide per the tax advisor advice to file head of household again for 2021 and then once my spouse gets his SSN amend my 2019, 2020 and 2021 taxes.   She advised against the ITIN with hopes of him getting a SSN in time.   My worries are whether he will get his SSN before the Green card interview so we will have time to amend those 3 tax returns to married filing jointing.    I really don't know what is best.   I am getting conflicting advice and just do not want to do anything wrong that will jeopardize our case.   Other option is to file 2021 taxes together as married filing jointing and apply for him to get his ITIN at that time which will take months.    Tax advisor says she has seen people get their SSN before the ITIN and then it was a waste of money. 

 

We are based out of the Portland, OR USCIS office.  If anyone has experience regarding this, your input is greatly appreciated 😃  Thanks! 

[JeanneAdil 6,498]

TAX preparer said that???

first of all you are not Head of household / u are married and u need to file as married

MFJ or MFS

and foreign income has a good healthy exclusion

so,  not sure why you would owe unless his income is really really healthy

and don't count on SS card coming fast if you did not file it within the 90 day I 94 timeframe and then not so fast when it takes time for SS office to check with immigration for the status

 

For tax year 2020, the maximum foreign earned income exclusion is the lesser of the foreign income earned or $107,600 per qualifying person. For tax year 2021, the maximum exclusion is $108,700 per person.Mar 9, 2021

[Crazy Cat 41,845]

***I moved this to Tax and Finances During US Immigration***

[yoda one for me 322]

You haven't filled out your timeline so I can't tell if you're still in the 90 days (assuming not) or if your spouse has received an EAD/AP card yet, and what I'm about to suggest may be easier if they at least have that (Though note I am not 100% sure if EADs count for this it's worth a try)

 

Your spouse needs to call the local SSA, explain that they need to be issued a SSN in order to file taxes (these are the magic words). SSA should give your spouse an appointment, for which they will need to bring various documents to prove identity and legal presence - this is why people are advised to go do this before the K1's 90 days expire as the I-94 serves as that. 

 

And if you don't get good result from calling the SSA (some agents are really unhelpful and tell you to mail in immigration docs - against their own policy!) you can just try calling again to see if you get a different agent.

Edited September 20, 2021 by yoda one for me
clarity

[Ayrton 965]

7 hours ago, Shadaryia said:

Good day everyone!     I am still trying to get everything prepared to file AOS for my spouse.   We went to a tax preparer last week and decided not to amend my 2020 taxes and apply for him to get an ITIN because we were going to owe almost $4000 to the IRS because my spouse does not have a SSN (I filed head of household and will lose earned income credits etc)    So now I am trying to decide per the tax advisor advice to file head of household again for 2021 and then once my spouse gets his SSN amend my 2019, 2020 and 2021 taxes.   She advised against the ITIN with hopes of him getting a SSN in time.   My worries are whether he will get his SSN before the Green card interview so we will have time to amend those 3 tax returns to married filing jointing.    I really don't know what is best.   I am getting conflicting advice and just do not want to do anything wrong that will jeopardize our case.   Other option is to file 2021 taxes together as married filing jointing and apply for him to get his ITIN at that time which will take months.    Tax advisor says she has seen people get their SSN before the ITIN and then it was a waste of money. 

 

We are based out of the Portland, OR USCIS office.  If anyone has experience regarding this, your input is greatly appreciated 😃  Thanks! 

When did you get married and when did your spouse move to the US?

 

First of all, a married person CANNOT file as head of household. A person to file as HOH must be considered unmarried at the end of the year, and you're not unmarried for 2021, so you cannot file as HOH next year. And if your spouse moved to the US last year, you filed with the wrong status for 2020 as well. I would change tax consultants if I were you.

 

Filing MFJ with an immigrant for the first year they moved to the US is the best case 99% of the time. Any foreign income is excluded up to 107k and you still get the double standard deduction which makes your tax owed go down/refund go up compared to MFS, which is the only other option you have.

[Wuozopo 4,293]

10 hours ago, Shadaryia said:

We went to a tax preparer last week and decided not to amend my 2020 taxes and apply for him to get an ITIN because we were going to owe almost $4000 to the IRS because my spouse does not have a SSN (I filed head of household and will lose earned income credits etc)  

I agree with others, you can’t be Head of Household. You’re not a single mom (an example of someone qualified for HOH filing.). Your earned income credit is a consideration which you can’t claim on a joint return if your spouse has an ITIN. You also can’t get it if you file Married Filing Separately. So basically who ever prepared your taxes did it fraudulently OR you failed to tell them you were married and lived with your husband. Amending to joint after he gets his SSN is the only way you can keep your credit.

 

10 hours ago, Shadaryia said:

My worries are whether he will get his SSN before the Green card interview so we will have time to amend those 3 tax returns to married filing jointing. 

Nobody knows how long it’s going to take. Things are so pandemically backed up. You are applying for EAD so that does allow a SSN when approved. I think you just need to drop the panic over tax returns as proof of your marriage. When he gets a SSN (after EAD), then get straight with the IRS. If it works out that you get to amend and take joint tax returns to the greencard interview, then it’s a bonus. Just go with what you can to prove bonafide marriage. They probably are not going to be as hard on you as you anticipate. He’s legally married to a US Citizen. 
 

 

 

10 hours ago, JeanneAdil said:

and foreign income has a good healthy exclusion

N/A. He’s not living abroad and he does not work so zero income. 

 

2 hours ago, Ayrton said:

 

2 hours ago, Ayrton said:

Filing MFJ with an immigrant for the first year they moved to the US is the best case 99% of the time. Any foreign income is excluded up to 107k and you still get the double standard deduction which makes your tax owed go down/refund go up compared to MFS, which is the only other option you have.

N/A. Not his first year. Been in the US seven years as an overstay. Married 6+ years.

[Shadaryia 11]

Thanks everyone for the replies, very appreciated. 

 

[Ayrton 965]

41 minutes ago, Wuozopo said:

N/A. Not his first year. Been in the US seven years as an overstay. Married 6+ years.

Forgot about that.

 

Then yes, OP will have to amend the tax returns anyway because it was wrongly filed as HOH. To OP: find another tax consultant before IRS comes after you. But this is not an immigration issue, if this is preventing you from filing for AOS, you're doing the wrong thing. USCIS will not say if you filed taxes correctly or not, that's not their job.

[Wuozopo 4,293]

11 hours ago, Shadaryia said:

Thanks everyone for the replies, very appreciated. 

 

I don’t think you need to add fear of the IRS coming after you. You have enough stress on your plate trying to finally do the right thing about immigration and save up your money to pay for it. The IRS won’t “come after” poor people when they could spend the same resources to go after wealthy tax evaders. You can get straight with the IRS later. 

[Shadaryia 11]

2 hours ago, Wuozopo said:

I don’t think you need to add fear of the IRS coming after you. You have enough stress on your plate trying to finally do the right thing about immigration and save up your money to pay for it. The IRS won’t “come after” poor people when they could spend the same resources to go after wealthy tax evaders. You can get straight with the IRS later. 

Thank you for your kind words!  I often regret posting on VisaJourney because I often feel attacked.  You have brightened my day! You are very appreciated!    I am truly doing my best.  Yes, I have made a lot of mistakes over the last 7 years but I am truly trying to fix it all.  Money is a huge factor unfortunately.     Thanks again and have a wonderful day  ❤️ 

[Chancy 6,241]

On 9/21/2021 at 6:05 AM, Ayrton said:

First of all, a married person CANNOT file as head of household. A person to file as HOH must be considered unmarried at the end of the year, and you're not unmarried for 2021, so you cannot file as HOH next year.

 

Just wanted to note that a married person can be considered unmarried by IRS and can file as HOH under certain conditions.  One of those conditions is if the taxpayer is living separately from their non-resident spouse, even if they are not legally separated, like in the case of couples living in different countries while waiting on the visa process.  Does not apply to the OP as she has been living together with her spouse in the US.  It did apply in our case and after comparing the numbers vs filing MFS, my USC spouse filed HOH for our first year of marriage.  On our second year, he was no longer eligible for HOH filing since his child became independent.

 

[Ayrton 965]

15 hours ago, Chancy said:

 

Just wanted to note that a married person can be considered unmarried by IRS and can file as HOH under certain conditions.  One of those conditions is if the taxpayer is living separately from their non-resident spouse, even if they are not legally separated, like in the case of couples living in different countries while waiting on the visa process.  Does not apply to the OP as she has been living together with her spouse in the US.  It did apply in our case and after comparing the numbers vs filing MFS, my USC spouse filed HOH for our first year of marriage.  On our second year, he was no longer eligible for HOH filing since his child became independent.

 

That's why I was careful to use the terms married and unmarried, instead of married and single. IRS has its own definitions for these terms, and that's what I was referring to. But like you said, it doesn't apply to OP, eve though she keeps getting wrong advices from her tax consultant.