What is status while AOS is pending from K-1 and K-2?

[AB loves AG 54]

Does anyone know what my husbands status is? He is a K-1 and our stepson is a K-2. Our adjustment of status has been pending since April 27, 2014, we are currently still waiting for an interview to process their green cards. What is his and our stepsons status? Alien, resident alien, non-resident alien? We went to get our taxes done, and we might qualify for Earned Income Credit, but it depends on his status. Also is Earned Income credit a means tested program? If so, I don't want to take it and get in trouble. Thank you in advance.

[Pitaya 2,576]

http://www.irs.gov/Individuals/International-Taxpayers/Introduction-to-Residency-Under-U.S.-Tax-Law

[AB loves AG 54]

I read this, and am having trouble figuring it out. If he passes the substantial presence test then he's a resident alien? My husband entered the US on Feb 11,2014 so that's 324 days in 2014. I take 1/3 of that plus all the days in 2015 which equals 108+70 days in 2015 equals 178. The substantial presence has to be greater than 183. So right now he doesn't meet it, but in 5 days he will? Am I interpreting this correctly? Can we take advantage of the federal earned income credit? Or is this a means tested benefit?

[p1nkmamba 18]

If you were married in 2014, then you file as married. The substantial presence test does not come into play here. This is typically seen more for F and J status.

About EIC. You need SSN for them. But, yes, if your income falls within the guidelines, you can take EIC.

[Zedayn 485]

Does anyone know what my husbands status is? He is a K-1 and our stepson is a K-2. Our adjustment of status has been pending since April 27, 2014, we are currently still waiting for an interview to process their green cards. What is his and our stepsons status? Alien, resident alien, non-resident alien? We went to get our taxes done, and we might qualify for Earned Income Credit, but it depends on his status. Also is Earned Income credit a means tested program? If so, I don't want to take it and get in trouble. Thank you in advance.

You and your husband can choose for your husband to be considered a resident alien for all of 2014 for tax purposes. This will allow you to file jointly together, and also to receive the EIC. The EIC is not a means tested benefit, it is simply a tax credit to lower your tax burden.

If you want your husband to be considered as a resident alien, you must paper file your return and include the following statement (or similar):

• Jane Doe is a US citizen
• John Doe was a non-resident alien at the end of Dec 2014
• We both elect to consider John Doe as a resident alien for tax purposes for the entire tax year 2014

(signature)

John Doe

Address

SSN

(signature)

Jane Doe

Address

SSN

For reference, consult this tax guide, pub 519 U.S. Tax Guide for Aliens: http://www.irs.gov/pub/irs-pdf/p519.pdf

Specifically look at the section on page 9, Nonresident spouse treated as resident.

I read this, and am having trouble figuring it out. If he passes the substantial presence test then he's a resident alien? My husband entered the US on Feb 11,2014 so that's 324 days in 2014. I take 1/3 of that plus all the days in 2015 which equals 108+70 days in 2015 equals 178. The substantial presence has to be greater than 183. So right now he doesn't meet it, but in 5 days he will? Am I interpreting this correctly? Can we take advantage of the federal earned income credit? Or is this a means tested benefit?

Ignore the substantial presence and green card test and all of those. They don't apply since your husband is married to you...a US citizen.

[AB loves AG 54]

This is all great news! I was afraid we couldn't get the earned income credit and lose out on some money. Thanks everyone for replying!