Out of status - 1040 taxes

[M4rinus 1]

Hi

Im out of status.

I filed the i-485 and got a RFE, sent the missing stuff and they received it.

Now we (me and my wife) have to file her income taxes.

True or false :

- I think we should file jointly, but i might be wrong.

- I dont know if I could be a dependant to my second sponsor, that would complicate things.

- According to Pub. 519 it seems I need to include a letter stating I want to be considered a resident alien

- I should file income i had in my home country before the getting married, even though thats taxed in my home country?

Help would be appreciated.

[GueraKristina 1]

Hi

Im out of status.

I filed the i-485 and got a RFE, sent the missing stuff and they received it.

Now we (me and my wife) have to file her income taxes.

True or false :

- I think we should file jointly, but i might be wrong.

- I dont know if I could be a dependant to my second sponsor, that would complicate things.

- According to Pub. 519 it seems I need to include a letter stating I want to be considered a resident alien

- I should file income i had in my home country before the getting married, even though thats taxed in my home country?

Help would be appreciated.

Ok, as far as i am aware, if you are married, you file jointly, my husband and i have been married a year, after doingin the I-129F, and then the AOS, and this is the first year that we are filing together. 2nd, even tho you have a sponsor, being a dependent as far as i know means that you are completely dependent on them, like child, do they pay for your food? housing? clothing? that sorta thing if not, then you are not their dependent. My father sponsered my husband, but we do not live with him, we have our own apartment, and my father does not support my husband and i, my husband and i support ourselves, therefore, we are not legally dependent on him, so therefore, neither are you. 3rd, i am not sure about resident alien stuff, i am not even sure what that is....... maybe you could explain that to me... or somebody could, and how that would effect taxes....., as far as filing for out of country stuff, i am not sure about that. hope i helped clear up some concerns. but let me know about the resident alien stuff and what that has to do with taxes.

[M4rinus 1]

As far as I know Im out of status, which should mean Im a resident alien. However since I dont have a green card, Im not officially, or permanently resident.

And I want to make sure I cover all my bases.

from what i gather in pub. 519 I was part of the year non resident alien and part resident alien. So I seem to have to choose to be treated as either.

And yea, I dont know if I should file income that I had in my homecountry before I was an alien (resident or non resident) I doubt it , but I want to make sure Im not breaking any laws.

[M4rinus 1]

As far as I know Im out of status, which should mean Im a resident alien. However since I dont have a green card, Im not officially, or permanently resident.

And I want to make sure I cover all my bases.

from what i gather in pub. 519 I was part of the year non resident alien and part resident alien. So I seem to have to choose to be treated as either.

And yea, I dont know if I should file income that I had in my homecountry before I was an alien (resident or non resident) I doubt it , but I want to make sure Im not breaking any laws.

bump....

[GueraKristina 1]

i doubt that you would be filing for anything out of country, since you are no longer there, and therefore i couldnt imagine why it would apply. How long have you been waiting for the GC? Have you been approved for it? and are just waiting for it? or have yet to receive an interview letter?

[trillium13 84]

Do you have a SS# yet? Last year my husband and I filed for AOS in January and by the time April 15th came around we still hadn't had our interview yet. My accountant advised us to file for an extension since we could put both of our SS#'s on it. That would give you another 6 months to get the rest figured out.

Filing jointly will be to your benefit when you apply for ROC. A good accountant should be able to answer all of these questions for you. Not a chain place, but a real CPA who knows the tax laws.

[M4rinus 1]

Thanks for all the reply and helpful insight and things to consider.

I do have a SS#

I do not have an interview date for the green card yet.

I figured I might have to tell them about the money I made there, because they ask for foreign income.

I will attempt to get more information from people who do taxes for a living.

I doubt its a big deal.

They have no way of knowing if and how much i did make, and my wife has 46 dollars taxable income.

Any additional ideas, thoughts or knowledge is appreciated.

[Brother Hesekiel 2,236]

You file taxes like a citizen/resident. The tax man doesn't care about your status with USCIS. You could be a hooker or selling pot, literally, Uncle Sam still would want his cut from you. I was out of status for almost 14 years, yet I always paid my taxes like any other resident or citizen.

[Nich-Nick 3,354]

Im out of status.

I filed the i-485 and got a RFE, sent the missing stuff and they received it.

Now we (me and my wife) have to file her income taxes.

True or false :

- I think we should file jointly, but i might be wrong.

TRUE because this should give you the best tax advantage. But the USC has the option to file Married Filing Separately and leave you completely off the return. If she files Married Separately, you file nothing since you're not a green card holder and aren't earning US income yet.

- I dont know if I could be a dependant to my second sponsor, that would complicate things.

FALSE. You can't be their dependent. That is very specific and generally is reserved for children of the sponsor who are under a certain age or a full time student up to a higher age. Sometimes elderly parents can qualify as dependents if certain conditions are met. You are not a dependent of your wife either. You count as an "exemption" as does she.

- According to Pub. 519 it seems I need to include a letter stating I want to be considered a resident alien

TRUE. If you want to file jointly, you and the wife both "elect" for you to be treated as a resident alien for tax purposes. See page 10 middle and last column of Pub 519 for info on what should be included in the statement you both sign and mail in with your taxes.

- I should file income i had in my home country before the getting married, even though thats taxed in my home country?

TRUE. If you file jointly by electing to be treated as a resident alien for tax purposes then worldwide income for the whole year must be included. That does NOT mean you will pay taxes on your foreign income. You will fill out the Form 2555EZ (unless you were self-employed) to get up to $91K of your income excluded. So you report it, but subtract it back out again so it does not end up in taxable income (unless you earned over $91K in equivalent US dollars). People freak when they read they have to declare their foreign income, but you are only declaring it and then get to exclude it .

[M4rinus 1]

Alright that was VERY helpful and to the point....

My wife is aweful with papers and we dont have anyone that can help us with the taxes, so I have to puzzle it all out.

1) I dont know the exact amount I made in my home country

2) It tells me to add it to line 7 and 21 on the 1040 but that seems double.

3) I couldnt figure out where i can DEDUCT the foreign income on the 1040 either....

....

uhm ....

help ?

[M4rinus 1]

And you said I should send in the statement.

But I was a resident alien on the last day of 2009.

Doesnt that mean I DONT have to send in that statement ??

[Nich-Nick 3,354]

Alright that was VERY helpful and to the point....

My wife is aweful with papers and we dont have anyone that can help us with the taxes, so I have to puzzle it all out.

I would suggest you purchase TurboTax Basic, the cheapest $24ish version, and install it on your computer. It gives you more flexibility to use than the "free" online version.

1) I dont know the exact amount I made in my home country

Come up with the best guess you can. If you had a regular job and got paychecks, then look at a few to figure it out. You should know when you quit working to move to the US. If you have online access to your foreign bank account, look at deposits. The IRS does not ask you to submit a paper (like the US W2 form) showing the exact amount you earned. So do the best you can and then convert it to US dollars.

Here's a good historical exchange rate calculator. Put in the starting date (01/01/09) and the ending date (when you quit work) and choose US Dollar in column 1 and your currency in column 2. Then a page will generate with the exchange rate for every day of that period. If you scroll to the bottom, it will give an average. You can use that to convert your earnings to US $$. http://www.oanda.com/currency/historical-rates

2) It tells me to add it to line 7 and 21 on the 1040 but that seems double.

Line 7 is the total income wife's + yours.

Line 21 is a negative number of your earnings. Example -25,256 with a minus sign or can be written (25,256) with parentheses. You will also write on the line by Line 21 this: Form 2555EZ. It is the exclusion, so farther down where line 22 says to add lines 7-21 to get your total income, you are actually subtracting out line 21's figure.

3) I couldnt figure out where i can DEDUCT the foreign income on the 1040 either....

That is on line 21. You will fill out a FORM 2555EZ to show you came up with a valid foreign income exclusion. It's elaborate, but basically is asking how many days you were in your "home" country working so it will only give you part of the total available exclusion if you only worked in the foreign country part of the year. The maximum exclusion is around $91K, but if you only worked in the foreign country half the year, then they allow half of that exclusion ($45Kish). Only people with really high incomes get limited by the maximum exclusion allowed.

And you said I should send in the statement.

But I was a resident alien on the last day of 2009.

Doesnt that mean I DONT have to send in that statement ??

If you were a resident alien, then no. But if you arrived in August, did you count the days in present in the US in 2009 and was that 183 or more days? Or did you get your green card? In general the statement is for people who arrive in the US sometime after July 1. They don't have their green card yet and there's not 183 days left in the year to meet the substantial presence test of 183 days. So they don't qualify to be a resident alien. BUT because they are married to a US citizen, they are allowed to "elect" or call themselves a resident alien to the IRS. It has nothing to do with immigration status, only how the tax people view you. There are two tests to be an outright resident alien--the green card test or the Substantial Presence test. I'm just explaining that those arriving late in the year don't always pass one of those tests. But they can skip the tests if they married a USC and write a statement.

And please keep in mind the foreign income can put you up to a higher tax bracket or affect you taxes if you have capital gains or stock dividends. The final tax won't always be the same for the USC if they filed jointly without showing the foreign income and exclusion. But not showing the worldwide income isn't a choice you get to compare if you want to file jointly.

A. Married USC filing Married Filing Separately and foreign spouse files nothing: Choice one

B. Married USC filing Joint and claiming foreign income: Choice two

C. Married USC filing Single: NOT A CHOICE

D. Married USC filing Joint but not showing foreign income: NOT A CHOICE

Try doing taxes like A or B and picking the one that give you the best tax break.

Do not even look at C or D because those aren't available to you.

Edited February 18, 2010 by Nich-Nick

[payxibka 10,045]

But I was a resident alien on the last day of 2009.

How so? by your timeline you are not yet an resident alien for tax purposes as you do not yet have a greencard nor were you present in the USA for more than 183 days (unless you spent a significant amount of time in the US in 2008 & 2007)...

[M4rinus 1]

How so? by your timeline you are not yet an resident alien for tax purposes as you do not yet have a greencard nor were you present in the USA for more than 183 days (unless you spent a significant amount of time in the US in 2008 & 2007)...

I did spend 177 days in the USA in 2009

I was here from August 2008 - February 16th 2009

And then I returned from August 23rd - present day

I figured that I was a resident alien because I'm not a non-resident alien and I don't currently get to leave.

@Nich-Nick

You are amazing and my tax hero.

This is all I will need to finish it, I'm guessing.

Thank you SO much for taking the time to help me out.

It's moment like this that make it easier to believe there's good left in the world.

Your replies took such a load of my shoulders, and are giving me the ability to check another dreadful 'must-do' off of my long long to-do list.

[payxibka 10,045]

I figured that I was a resident alien because I'm not a non-resident alien and I don't currently get to leave.

nothing with the IRS is simple....

However, if you do the residency substantial presence test... you probably a resident alien because you do get partial credit for days in 2008