What's my status?

[GodRaine 0]

Hi VJ!

I am moving through the K-1 Visa immigration process. I am from Toronto, Canada and my wife is from Pueblo, CO.

The final interview for my visa (before my move) was in September 2015 and my actual move date was October 17, 2015.

We got married on November 17, 2015 and I filed the AOS / EAD package on January 6, 2016. My I-94 document expired on January 14, 2016.

My question is, specifically for the purposes of taxation, what is my 'status' in the USA? We were talking to a tax consultant this morning who said that he thinks I would be a "resident alien" but I wasn't 100% sure and wanted to ask you folks.

Any insight you can provide would be wonderful.

Thank you!

[teeak 224]

Hmm, according to this: https://www.irs.gov/taxtopics/tc851.html

It seems like you'd be a non-resident alien unless you meet the substantial presence requirement (since you're Canadian, this is possible if you stayed in the US for at least 4 months or so earlier this year).

I assume you have a SSN. If so, you can file married filing jointly with your wife.

Edited January 27, 2016 by teeak

[GodRaine 0]

Hmm, according to this: https://www.irs.gov/taxtopics/tc851.html

It seems like you'd be a non-resident alien unless you meet the substantial presence requirement (since you're Canadian, this is possible if you stayed in the US for at least 4 months or so earlier this year).

I assume you have a SSN. If so, you can file married filing jointly with your wife.

Thank you teeak! That link is really helpful.

I don't have an SSN yet because I don't have my AOS/EAD package approved yet.

Can I get an SSN before that time period? That was another question I was going to ask.

[aaron2020 11,651]

For tax purposes, you were a non resident alien for 2015.

You can elect to file a US joint return with your spouse. You will need to declare your Canadian income.

File with an ITIN request.

[teeak 224]

I believe you would have been able to apply for SSN when you had at least 2 weeks left on your I-94. This is according to the guide here on VJ: http://www.visajourney.com/content/ssn

But, since you do not have one, as mentioned by the poster above, you will need an ITIN to file as married filing jointly. Here's some info on how to receive one: https://www.irs.gov/Individuals/General-ITIN-Information

Edited January 27, 2016 by teeak

[GodRaine 0]

I believe you would have been able to apply for SSN when you had at least 2 weeks left on your I-94. This is according to the guide here on VJ: http://www.visajourney.com/content/ssn

But, since you do not have one, as mentioned by the poster above, you will need an ITIN to file as married filing jointly. Here's some info on how to receive one: https://www.irs.gov/Individuals/General-ITIN-Information

Sorry to mention this, but both your links are broken ):

I managed to find the ITIN one (https://www.irs.gov/Individuals/Individual-Taxpayer-Identification-Number-ITIN) but can't find the SSN one. If you have a working link I would really appreciate it!

[teeak 224]

Sorry, I think it's because of the space at the end. But, if you copy and paste it into a new tab, it should work.

[GodRaine 0]

Sorry, I think it's because of the space at the end. But, if you copy and paste it into a new tab, it should work.

Hey, look at that, it worked. Thank you!

[GodRaine 0]

Sorry, I think it's because of the space at the end. But, if you copy and paste it into a new tab, it should work.

So teeak - I feel so dumb now, I let my I-94 expire before applying for the SSN.

Is my next chance once I get my AOS / EAD package completed?

[TBoneTX 43,546]

*** Thread is moved from the K-1 Process forum to the Tax & Finances forum, on the basis of the chief query. ***

[teeak 224]

So teeak - I feel so dumb now, I let my I-94 expire before applying for the SSN.

Is my next chance once I get my AOS / EAD package completed?

Yep, once you receive your EAD/AP card, you'll be able to apply for a SSN. Hopefully, you'll receive it in the next 2-3 months. You'll also need the SSN to be able to work and deduct taxes from your paycheck accordingly.

Edited January 27, 2016 by teeak

[GodRaine 0]

Yep, once you receive your EAD/AP card, you'll be able to apply for a SSN. Hopefully, you'll receive it in the next 2-3 months. You'll also need the SSN to be able to work and deduct taxes from your paycheck accordingly.

Thank you so much for the info.

I also checked with my local SSA office and they said the same thing!

I appreciate your help.

[Dave&Roza 748]

Everybody is so quick with the apply for ITIN when in fact the OP should not apply for an ITIN as he is eligible for a SSN--granted he has to wait for his EAD or GC to get the SSN, but he is eligible for one which makes him ineligible for a ITIN (yes, I know the IRS will give him an ITIN if he applies, but if you read the rules for being issued an ITIN someone who is eligible for a SSN should not apply for an ITIN). You have two choices: 1) file as a non-resident alien, or 2) declare your self as a lawful permanent resident for TAX purposes and declare your foreign income and file as married filing jointly with your spouse. This requires you to mail in a paper return, but it may be the better choice depending on YOUR tax situation. Should you find April 15th approaching and still no EAD or GC to get your SSN, file for an extension--just be sure you are either getting a refund or pay the taxes owed. The extension gives you until October 15th and one would hope you have your SSN before then.

Dave

[F & J 21]

Hi!

For the 2009 tax year (my first year here in the U.S.), my husband and I were able to file a joint return based on the Substantial Presence Test but it looks like you don't meet that requirement.

But I hope you can find some helpful info by looking through this:

Publication 519, U.S. Tax Guide for Aliens

https://www.irs.gov/publications/p519/index.html

(The guide says 2014 but I couldn't find a 2015 version so I assume this is still valid)

Good luck!

Edited January 28, 2016 by F & J

[rutabaga 209]

Being married to a US citizen is enough to be treated as a resident for tax purposes if one wishes to be treated as such (since it involves paying taxes on their worldwide income in the US), no need to even bother counting the days for the substantial presence test, etc.

Nonresident Spouse Treated as a Resident