EG&XY

Don't you have an entry stamp in your passport showing that you returned home?

You are married; therefore, he must file as married. I think what you are really trying to figure out is should he file as "married filing jointly" or "married filing separately"?

He can file either way, but it is much easier to simply file as "married filing separately". There can be benefits to filing as "married filing jointly" but it is much messier and requires quite a bit more information and work so unless you think that there would be a benefit you probably don't want to go down that road.

3 minutes ago, Ermin&Zijada said:

Just to clarify since I would hate for this to happen to me, or anyone after waiting so long for a visa.

 

The plan is to  go and then travel back to the states with my fiance once his visa is approved. Hoping to be able to stay by him throughout the POE process as his english is not very good and he is nervous about that. Anyways, is it important to have an exact date? That is kinda difficult with the nature of waiting on a visa. Does it suffice to simply say next month or once we get settled? 

 

Thanks ahead!

No, you don't have to have an exact date. But you can't indicate that you may not actually get married. It is perfectly fine to say that you are still planning the details but that you will get married within the 90 days. If you have an idea of what date range, you can say "We plan to marry sometime between X and Y, but we are still finalizing the details."

I highly doubt that you will be able to stay with him throughout the POE. Are you a USC? There is usually a line for USC and residents and then a totally separate line for everyone else.

I agree that you might get by with a K-1, but there is also a chance that if they find out about the ceremony that they will view it as being "too married" for the K-1. As stated by others, the safest option is to go ahead and marry and then do a CR-1 visa. If you decide to go the CR-1 route but your signifiant other can't enter the US then Canada can be a very good option. That is what my husband and I opted to do, although it was for slightly different reasons. He could not enter the US due to a few different complications, one of which was a J-1 visa exclusion where he must spend 2 year back in China (any time outside of China just extends the ending of the 2 year period. Additionally, marriage in China was not an option for us, since China does not recognize same-sex marriage. Therefore, we opted to marry in Canada (only 1 week added to his 2 year period) because it was relatively easy for us to get him a tourist visa for Canada, and I'm a US citizen so I can basically enter with no questions asked.

If you are interested in this option I'd be more than happy to share more details about our experience (just send me a private message). Just be careful about which province you choose, they each have their own requirements about waiting periods (some require waiting periods of up to a month), etc. We opted for Vancouver because in British Columbia there is no waiting period. We had our license within about 8 hr from when we landed, and we were married in the snow on top of Mount Washington on Vancouver Island the next day.

Thanks for the help. I seem to have found someone here that has some experience with this and we are working on collecting all of the info that is necessary. I'll update later with what I learn from the process for other people's benefit.

@RandyW Thanks, I realize that filing as "married filing separately" would be much simpler, but my spouse already has a SSN from his previous time in the US on the J-1 visa and there can be significant benefits to filing jointly. From my initial estimate it seems like we might save ~$10,000-12,000 just by filing jointly. As I understand it, there are two options with foreign income if you meet certain "presence tests". In one case you claim your income and any taxes that you paid to the foreign government and the IRS will give you credit for the taxes that you already paid. However, there can be a second option (if you qualify for it) that allows you to claim the income but it is not taxed if the income is below the threshold. It seems that my spouses income would fall under the second option which is where we get a big benefit. As of now I just don't know what forms that goes with, I can update later once we complete the process.

Sorry if this has been discussed previously, but I'm in a bit of a unique situation and want to get some feedback/guidance from anyone that might have experience with this.

My spouse and I (USC) got married last year (Oct 2016) so now I will be filling as married (obviously). We submitted our i-130 for CR-1 in Dec 2016 and are currently waiting for our NOA2, so he is still a resident of China and was in China for the entire year. However, he was previously in the US on a J-1 visa (left prior to 2016) and so he already has an SSN. The assumption is that filing as "married filing jointly" will be better for us and should be a little easier since he already has an SSN, plus his income (all from Chinese source) falls below the foreign earned income exclusion threshold so his income should not be taxed. So our questions are:

1) Is it as simple as filing with his SSN and then the appropriate documentation (Form 2555?) to get the exemption for his income?

2) Do we need some sort of documentation of his income to go with the documentation (Form 2555?) above? He doesn't have documentation that would be equivalent to a W-2. Or would we just have to wait for a request/audit from the IRS to provide supporting documentation of the income?

3) If we were to have to provide documentation of his income, what sort of documentation would likely suffice? Bank statements, etc? Unfortunately there is not clean/easy way to show this for his income.

Thanks for any insight/help that you can give.

You are fine, it only means that you may have over/under paid in taxes throughout the year. So you may owe more not to make up for it, or you may get money back now because they withheld too much during the year.

The number of exemptions/allowances that you claim with your employer doesn't have to match what shows on your actual tax filing. Some people choose to tell their employer to use more or fewer deductions when deciding how much tax to withhold from their pay. If you tell your employer to use fewer (such as 0) then they will withhold more money for taxes, so at the end you may get money back because they overestimated how much money you would owe in taxes. However, if you tell your employer to use more (such as 4) then they will withhold less money because they assume that your tax burden will be less, but at the end of the year you may end up owing additional money.

In the end it is the numbers that you claim on the tax filing (i.e., 1040) that mater for determining the exact taxes owed, and the amounts of money that your employer withheld throughout the year for the taxes. Some people choose to have their employer to take extra withholding (lower exemption/allowance) so that they can expect to get money back when they file their taxes. But other people prefer to get more with each paycheck (have fewer taxes withheld, higher exemption/allowance) and then owe money to the government when they file their taxes. They key is to not owe too much at the end of the year, if you owe over a certain amount at the end of the year then they may penalize you and add on extra fees for not paying enough throughout the year.

See if this article helps explain things further:

https://smartasset.com/taxes/tax-allowances