B2 to adjustment of status and ITIN number

[Kitzki 4]

Hello!

 

My husband entered US with B2 visa and we sent AOS application to USCIS including work permit app as well..

 

we haven't even received a receipt notice from USCIS as of yet and I'm trying to file 2020 tax return.

 

I couldn't find exact same question so I wanted to ask you guys about this.

 

 

I understood that since my husband doesn't have SSN or ITIN number. I can file a tax return married but separately.

 

However, It won't let me file without his SSN or ITIN number. (it won't proceed further from it)

 

I read IRS and it says that he can only apply for ITIN number if he doesn't qualify for SSN.. but we filed work permit with AOS and I understood as "well.. he is qualified since he applied for AOS.." so we can't apply for ITIN number.. but then, he is technically here with B2 visa which makes him non-resident.. he might not be qualified for SSN at this moment too. (P.S I'm a permanent resident) 

 

Do you guys think it's okay to apply for ITIN number? 

 

I really appreciate your help!! thank you!

 

 

Edited February 3, 2021 by Kitzki

[Boiler 45,662]

He is not currently qualified for a SSN.

[payxibka 10,045]

31 minutes ago, Kitzki said:

Hello!

 

My husband entered US with B2 visa and we sent AOS application to USCIS including work permit app as well..

 

we haven't even received a receipt notice from USCIS as of yet and I'm trying to file 2020 tax return.

 

I couldn't find exact same question so I wanted to ask you guys about this.

 

 

I understood that since my husband doesn't have SSN or ITIN number. I can file a tax return married but separately.

 

However, It won't let me file without his SSN or ITIN number. (it won't proceed further from it)

 

I read IRS and it says that he can only apply for ITIN number if he doesn't qualify for SSN.. but we filed work permit with AOS and I understood as "well.. he is qualified since he applied for AOS.." so we can't apply for ITIN number.. but then, he is technically here with B2 visa which makes him non-resident.. he might not be qualified for SSN at this moment too. (P.S I'm a permanent resident) 

 

Do you guys think it's okay to apply for ITIN number? 

 

I really appreciate your help!! thank you!

 

 

Answers to tax related questions as such are contained in the tax forum

[Paul Hanaki 72]

If I were you I would wait until he gets his SSN before you file your taxes. If he was here longer than 6 months last year he would qualify as a resident for tax purposes. Then you will get stimulus money.  If you go ahead and file now you will lose that 1,800.

[chiks24 11]

On 2/3/2021 at 7:36 PM, Paul Hanaki said:

If I were you I would wait until he gets his SSN before you file your taxes. If he was here longer than 6 months last year he would qualify as a resident for tax purposes. Then you will get stimulus money.  If you go ahead and file now you will lose that 1,800.

My wife and I got married in Jan 2020 and applied for AoS in September. Currently working on the RFE but I was wondering about this too. Once we get her SSN and can file taxes jointly, can we claim the $600 and the possible $1400 stimulus check even if it is mid-2021?

[Paul Hanaki 72]

8 hours ago, chiks24 said:

My wife and I got married in Jan 2020 and applied for AoS in September. Currently working on the RFE but I was wondering about this too. Once we get her SSN and can file taxes jointly, can we claim the $600 and the possible $1400 stimulus check even if it is mid-2021?

You get the $1,200 check and the $600 check.. The details of the $1,400 check are not final yet so I don't know about that. Yes if you don't have your SSN by April 15th you need to file for an extension and then you have until mid October to get your SSN.  If you don't get it by then you are out of luck for the money.  I am still waiting for my step daughters SSN. My wife got hers in October. We get an extra 5k if we wait for theirs due to the stimulus and other child tax credits.

[Kitzki 4]

..

Edited February 9, 2021 by Kitzki

[Kitzki 4]

On 2/3/2021 at 7:36 PM, Paul Hanaki said:

If I were you I would wait until he gets his SSN before you file your taxes. If he was here longer than 6 months last year he would qualify as a resident for tax purposes. Then you will get stimulus money.  If you go ahead and file now you will lose that 1,800.

 

Sorry, I didn't quote it correctly.

 

please disregard previous one XD

 

thank you for your input!

Do you happend to know if that 6 months have to be consecutive 6 months?

 

he was here for 6 months.. but it wasn't consecutive months.

 

 

Thank you again!

[Paul Hanaki 72]

u will be considered a United States resident for tax purposes if you meet the substantial presence test for the calendar year. To meet this test, you must be physically present in the United States (U.S.) on at least:

1. 31 days during the current year, and
2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
   • All the days you were present in the current year, and
   • 1/3 of the days you were present in the first year before the current year, and
   • 1/6 of the days you were present in the second year before the current year.

Example:

You were physically present in the U.S. on 120 days in each of the years 2018, 2019 and 2020. To determine if you meet the substantial presence test for 2020, count the full 120 days of presence in 2020, 40 days in 2019 (1/3 of 120), and 20 days in 2018 (1/6 of 120). Since the total for the 3-year period is 180 days, you are not considered a resident under the substantial presence test: for 2020.

Days of Presence in the United States

You are treated as present in the U.S. on any day you are physically present in the country, at any time during the day. However, there are exceptions to this rule. Do not count the following as days of presence in the U.S. for the substantial presence test:

• Days you commute to work in the U.S. from a residence in Canada or Mexico, if you regularly commute from Canada or Mexico.
• Days you are in the U.S. for less than 24 hours, when you are in transit between two places outside the United States.
• Days you are in the U.S. as a crew member of a foreign vessel.
• Days you are unable to leave the U.S. because of a medical condition that develops while you are in the United States.
• Days you are an exempt individual (see below).

For details on days excluded from the substantial presence test for other than exempt individuals, refer to Publication 519, U.S. Tax Guide for Aliens.

The term United States (U.S.) includes the following areas:

• All 50 states and the District of Columbia.
• The territorial waters of the United States.
• The seabed and subsoil of those submarine areas that are adjacent to U.S. territorial waters and over which the United States has exclusive rights under international law to explore and exploit natural resources.

The term does not include U.S. territories or U.S. airspace.

[chiks24 11]

On 2/8/2021 at 8:05 AM, Paul Hanaki said:

You get the $1,200 check and the $600 check.. The details of the $1,400 check are not final yet so I don't know about that. Yes if you don't have your SSN by April 15th you need to file for an extension and then you have until mid October to get your SSN.  If you don't get it by then you are out of luck for the money.  I am still waiting for my step daughters SSN. My wife got hers in October. We get an extra 5k if we wait for theirs due to the stimulus and other child tax credits.

Thanks for your reply. Apologies for a little bit of incomprehension but what is this extension for - stimulus checks or SSN? 

[Paul Hanaki 72]

8 hours ago, chiks24 said:

Thanks for your reply. Apologies for a little bit of incomprehension but what is this extension for - stimulus checks or SSN? 

You file an extension for your taxes until you get your SSN. You can extend your taxes until mid October if you file an extension with the IRS. This gives your SSN time to arrive and you can get your stimulus money or child tax credit.

[chiks24 11]

On 2/10/2021 at 5:44 AM, Paul Hanaki said:

You file an extension for your taxes until you get your SSN. You can extend your taxes until mid October if you file an extension with the IRS. This gives your SSN time to arrive and you can get your stimulus money or child tax credit.

Got it. Thank you!

[E_pluribus_unum 73]

FYI, you do not have to file an extension if you are going to receive a refund. The extension would be if you owe money. 

 

I am in the same boat and did some research previously. I have found a few options:

1) File Married but filing separately (must be done on paper because online Tax forms will not allow you to proceed without an SSN or ITIN) 

 

2) File Married Jointly on Paper and mail it in along with form W7 (application for ITIN) and required documents. This way will require you to submit original documents to the IRS such as your spouse's passport which may be needed for your immigration interview. Also, per Google, it seems that the IRS is taking a long time to process these so you could be waiting a long time to get the originals back. 

 

3) File Married Jointly on Paper and fill out the W7 and present your original documents to an acceptance agent https://www.irs.gov/individuals/international-taxpayers/acceptance-agent-program. This way allows you to present the original documents without having them mailed to the IRS; however, the return would still need to be filed on paper and most of these acceptance agents require that you also file the return with them which can cost quite a bit. This way will also require 

 

4) File Married Jointly on Paper and fill out the W7 and present your original documents to the IRS Taxpayer Assistance Center (TAC) https://www.irs.gov/help/tac-locations-where-in-person-document-verification-is-provided. Again, this way allows you to present the original documents without having them mailed to the IRS. You have to make an appointment prior to going. 

 

NOTE: The ITIN may affect certain tax credits you are eligible for. The ITIN will also affect the stimulus rebate in that the spouse with the ITIN may not be eligible. 

 

Also, you can always amend the return after your spouse has received their SSN. This will allow you to receive the additional stimulus rebate and any tax credits that may  be owed to you and your spouse. 

 

I decided to just hold off on filing unless USCIS asks me to bring 2020 tax return with me to the interview in which case I will just do one of the above. 

[Skyman 327]

I would avoid filing unless you really need to until he gets a SSAN. But if you must, you can file a W7 with you return and he gets an ITIN.

[Paul Hanaki 72]

On 2/23/2021 at 7:48 PM, E_pluribus_unum said:

FYI, you do not have to file an extension if you are going to receive a refund. The extension would be if you owe money. 

 

 

You must specifically file for an extension regardless if you owe money or not. Filing an extension moves the filing deadline. If you don't file an extension then your filing deadline is April 15th.   Yes you can always file an amended return. 

 

Relevant IRS QA - The other option is to file a Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return. This option would give you an additional six months to file your return; by then you should have your daughter's SSN. 

 

Relevant for me with my daughters- You may also be eligible to claim the earned income credit (EIC) and/or the child tax credit/additional child tax credit (CTC/ACTC). Please note that you may not claim your child as a qualifying child for the EIC on either your original or an amended return if your child doesn't have an SSN on or before the due date of your return (including extensions), even if your child later gets an SSN. Similarly, you may not claim your child as a qualifying child for the CTC/ACTC if your child doesn't have an SSN before the due date of your return (including extensions), even if your child later gets an SSN.

Edited February 25, 2021 by Paul Hanaki