Is my spouse considered resident or non-resident on our married filing jointly ?

[hoangminh83 0]

Hi, my spouse came to the US on Dec 29 2021 on B2 visa (tourism) and has never left the US since then. We married on April 1 2022. I have filed a petition to sponsor my spouse to stay at the US. My spouse has got her social security number with the permission to work in the US. 

Is she considered a resident or non-resident on the married filing jointly tax paperwork ?

 

Thank you.

[OldUser 6,860]

While your spouse may not be a lawful permanent resident (green card holder) yet, in the eyes of IRS she is a tax resident, because she spent over 183 days in the US (substantial presence).

 

"You 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:

 

31 days during the current year, and
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."

 

More here:

 

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

Edited January 22, 2023 by OldUser

[Wuozopo 4,293]

@hoangminh
 

Firstly you can only file a joint return with a resident alien. Nonresident aliens file a different return (1040NR) and those can’t be joint.

 

So your wife can

1. meet the substantia presence requirement in the US based on enough days present to be considered a resident alien for tax purposes. (She does), OR
2. Meet the greencard test (she doesn’t)

She qualifies on #1 so you are free to file a joint return with her and go by the resident alien rules which are the same as when two citizens file a joint return. This is for tax purposes only with the IRS. It doesn’t change her USCIS immigration status.

Edited January 22, 2023 by Wuozopo

[hoangminh83 0]

Thank you very much for your responses.

[Crazy Cat 41,979]

59 minutes ago, hoangminh83 said:

Is she considered a resident or non-resident on the married filing jointly tax paperwork ?

Resident if filing jointly.