K1 AOS Residency status for tax return

[BH&JK 10]

Hi All,

 

My wife (fiance at the time) arrived in the US in August of 2022 and we got married in September 2022. She also applied for and received her SSN in September as well. She applied for AOS with an NOA1 date of October 10th. We are now filing our tax return for 2022 and ran into a question. 

We would like to file jointly (MFJ) but it is unclear to us what her current status actually is. From what I've been able to find on here it seems like for tax purposes she might be a Resident Alien, even if by USCIS standards she isn't one. In reading on if this was correct or not, I found several older posts here on VJ stating we had to file the 2022 tax return by mail (was planning on e-filing with TurboTax) and send in some statement asking her to be considered a Resident Alien for the IRS. Is this correct? I'm unsure if it matters or not, but she had no reportable income for 2022, so we don't have additional forms from that angle to file. 

 

Happy to provide more clarification if needed, thanks in advance everyone!

[Crazy Cat 39,405]

Bottom line:  You can file a joint return if you wish.  Good luck.   USCIS does not establish tax status.  As long as you were married as of Dec 31, 2022, and as long as she has a Social Security number, you can file a joint return....electronically ...even if she had not yet arrived in the US. 

Edited January 28, 2023 by Crazy Cat

[Wuozopo 4,285]

1 hour ago, BH&JK said:

Hi All,

 

My wife (fiance at the time) arrived in the US in August of 2022 and we got married in September 2022. She also applied for and received her SSN in September as well. She applied for AOS with an NOA1 date of October 10th. We are now filing our tax return for 2022 and ran into a question. 

We would like to file jointly (MFJ) but it is unclear to us what her current status actually is. From what I've been able to find on here it seems like for tax purposes she might be a Resident Alien, even if by USCIS standards she isn't one. In reading on if this was correct or not, I found several older posts here on VJ stating we had to file the 2022 tax return by mail (was planning on e-filing with TurboTax) and send in some statement asking her to be considered a Resident Alien for the IRS. Is this correct? I'm unsure if it matters or not, but she had no reportable income for 2022, so we don't have additional forms from that angle to file. 

 

Happy to provide more clarification if needed, thanks in advance everyone!

Everything you have written is correct. The statement you write and both sign is an election for her to be treated as a resident alien for tax purposes. There is nowhere in any of the tax softwares to include such a signed statement electronically, thus you print out a paper return and include the election statement and mail it if you want to follow IRS rules. 
 

To be a resident alien for tax purposes she has to have a greencard or enough days present in the US. Had she arrived earlier in 2022, she would have enough days. But an August arrival doesn’t have enough days left in the year. If she visited for some long periods in 2020 and 2021, there is a formula that counts some of those days which might give her enough days present. Regardless of her days present, the IRS has a perk for those married to a USC where you can elect for her to be treated as a resident alien by writing the statement choosing for her to be. You can find all of that in Publication 519 on the IRS website. 
 

You mentioned she has no taxable income. Did she have any income in Germany (2022) prior to her August arrival?  If so that is reportable on you joint tax return. It must include “worldwide income” for the joint filers. That income can be excluded so she wouldn’t pay taxes on the same money twice. Turbo Tax asks about foreign income in “Less Common Income” Toward the end of their Income walk-thru.  

 

I said earlier that the signed statement has to be included if you want to follow IRS rules. If you want to cheat, then just e-file and pretend you wife qualified. The IRS doesn’t know when she arrived.  When I was a new immigrant (October arrival) we paper filed with a statement because we wanted to follow the precise written IRS tax law. 
 

Publication 519 https://www.irs.gov/pub/irs-pdf/p519.pdf

2021 version is the latest they have. Chapter 1 covers resident or non resident as well as the statement. 

 

[Crazy Cat 39,405]

55 minutes ago, Wuozopo said:

If you want to cheat, then just e-file and pretend you wife qualified. The IRS doesn’t know when she arrived.

I really don't know why they require a letter of declaration.  I would think the IRS assumes declaration of full year residency if a joint return is filed, since a non-resident for tax purposes cannot file a joint return.  

Edited January 28, 2023 by Crazy Cat