K1 spouse required to file tax return?

[HKtoUSA 30]

Sorry to ask this, but I've searched the forum and haven't found an answer to my specific situation.

 

My now-husband and I were living overseas for several years and moved back to the U.S. in July 2021. I am a USC and he entered on a K1 visa. We were married in August and he applied for AOS, EAD, etc. but has not received any of those or a Social Security number. Given his immigration status, he obviously did not work at all in 2021, but he does have overseas investments.

 

Is he required to file a tax return? If so, we will file jointly, but is it best to file for an extension when he has an SSN or better to submit sooner without and leave that field blank? 

[Wuozopo 4,291]

29 minutes ago, HKtoUSA said:

Is he required to file a tax return? If so, we will file jointly, but is it best to file for an extension when he has an SSN or better to submit sooner without and leave that field blank? 

Given his status, not enough physical presence or greencard, no US income he is not required to file. You would file Married Filing Separately.

 

If you want to file a joint return, you can write and sign a statement electing for him to be treated as a resident alien for the entire tax year.
 

He requires a SSN or ITIN to file jointly. You can file with the ITIN application and once the ITIN is assigned, they process the return using the new ITIN.

 

You can also file for an extension and wait hoping to get his SSN before that Oct 15 extended filing deadline. With a SSN he can qualify for the third economic stimulus payment of $1400. Not so with an ITIN.

 

You will most likely come out ahead tax wise with a joint return.

[JeanneAdil 6,400]

u filed for AOS late in 2021 so, getting the SS # before October 15th are iffy for the extension 

 

as for her foreign investments , she is not liable for the initial investment amount not even if transfering funds to the US (just need to know how to fill out the correct forms when bringing in more than 10,000 USD)

but for future years she would be liable for interest earned on investments overseas (exclude amount is over $100,000  with form 2555)

China has a tax treaty with the US

 

Third Stimulus Check: Do Non-U.S. Citizens Qualify? - Forbes

https://www.forbes.com › advisor › personal-finance › no

 

First and foremost: Only people with valid Social Security numbers will be eligible to receive a stimulus payment. That means undocumented immigrants and immigrants who file their taxes with an Individual Taxpayer Identification Number (ITIN) are not eligible for a payment.Mar 12, 2021

Edited April 3, 2022 by JeanneAdil

[HKtoUSA 30]

29 minutes ago, JeanneAdil said:

u filed for AOS late in 2021 so, getting the SS # before October 15th are iffy for the extension 

 

as for her foreign investments , she is not liable for the initial investment amount not even if transfering funds to the US (just need to know how to fill out the correct forms when bringing in more than 10,000 USD)

but for future years she would be liable for interest earned on investments overseas (exclude amount is over $100,000  with form 2555)

China has a tax treaty with the US

 

Third Stimulus Check: Do Non-U.S. Citizens Qualify? - Forbes

https://www.forbes.com › advisor › personal-finance › no

 

First and foremost: Only people with valid Social Security numbers will be eligible to receive a stimulus payment. That means undocumented immigrants and immigrants who file their taxes with an Individual Taxpayer Identification Number (ITIN) are not eligible for a payment.Mar 12, 2021

My understanding is that you can get a SSN once you have an Employment Authorization Document, which is expected to be approved any day now. Is that not correct? Can you only get a SSN once you have the green card?

 

2 hours ago, Wuozopo said:

Given his status, not enough physical presence or greencard, no US income he is not required to file. You would file Married Filing Separately.

 

If you want to file a joint return, you can write and sign a statement electing for him to be treated as a resident alien for the entire tax year.
 

He requires a SSN or ITIN to file jointly. You can file with the ITIN application and once the ITIN is assigned, they process the return using the new ITIN.

 

You can also file for an extension and wait hoping to get his SSN before that Oct 15 extended filing deadline. With a SSN he can qualify for the third economic stimulus payment of $1400. Not so with an ITIN.

 

You will most likely come out ahead tax wise with a joint return.

Thank you, super helpful!

[JeanneAdil 6,400]

6 minutes ago, HKtoUSA said:

My understanding is that you can get a SSN once you have an Employment Authorization Document, which is expected to be approved any day now. Is that not correct? Can you only get a SSN once you have the green card?

 

Thank you, super helpful!

 

and yes, especially u u marked the box for USCIS to apply for SS #

 read post on here about timeline for EAD / I did not have go thru this so its out of my experience 

but it seems they are still backlogged 

[Wuozopo 4,291]

58 minutes ago, HKtoUSA said:

My understanding is that you can get a SSN once you have an Employment Authorization Document, which is expected to be approved any day now. Is that not correct? Can you only get a SSN once you have the green card?

Yes a SSN can be issued when you get EAD.. You can wait about 10 days after EAD is approved (to let the system catch up and the SAVE database to populate with your EAD status) and go in person to a Social Security office and apply in the name on your EAD card. I don’t really know how long it’s taking if you checked the send SSN box when you applied for your greencard. I just don’t keep up with how long things are taking anymore. There’s a forum where SSNs are discussed you might check out. 

[jammer742 3]

So from my understanding reading through multiple threads...

 

If my spouse (1) does not have an ITIN or (2) SSN yet after filing our adjustment of status from K1 (485 & 765), then I should file for an extension as a single filer and amend to family filer before October when we have one of the two numbers (hopefully SSN for stimulus).

 

Is that correct? This is all so confusing to me, and apologies that I'm probably asking a question being asked before. Waiting until the last minute to do taxes here...

[Wuozopo 4,291]

2 hours ago, jammer742 said:

So from my understanding reading through multiple threads...

 

If my spouse (1) does not have an ITIN or (2) SSN yet after filing our adjustment of status from K1 (485 & 765), then I should file for an extension as a single filer and amend to family filer before October when we have one of the two numbers (hopefully SSN for stimulus).

 

The extension gives you until October 15 to wait on a SSN and file whenever you get it. The form doesn’t ask your filing status. And by the way, you said “single” filer. You are not single. I think you mean “married filing separately”.  You can list her name on the extension form with your name because that is how you intend to file taxes. You don’t amend the extension later. It is a one time request for more time. It is not filing a return. 
Extension you can mail before April 18 https://www.irs.gov/pub/irs-pdf/f4868.pdf

You don’t apply for the ITIN and wait for it to come then file. You need to read the ITIN process on the IRS website for all the details. I’ll give you a brief summary.

You submit

1. a completed and signed joint tax return (paper return) with her SSN left blank. And
2. An application for her ITIN (Form W7)
3. Her required ID which is her actual passport which they send back to her.**

All that gets mailed together to Austin, Texas where they process ITINs. They will process the ITIN, assign it to the tax return, then process the return and issue the refund (if you’re getting one.)

 

** In lieu of mailing off her passport, you can get a certified copy to mail instead. You can only get it certified with her in person at an IRS Taxpayer Assistance Center. Free service. Requires an appointment.  Or certified at an IRS approved Acceptance Agent. Fees. 
 

Once you apply for the ITIN, you have filed and she won’t get the stimulus. Waiting to file with a SSN is over at that point. I would wait and see if you get the SSN. You can still do the ITIN process at a later date if it doesn’t look like the SSN will happen in time.  

 

2 hours ago, jammer742 said:

Waiting until the last minute to do taxes here...

Yes, me too. Haven’t even started. 

 

Edited April 12, 2022 by Wuozopo