KittyKyalesca

40 minutes ago, Yu1988 said:

Is K1 spouse eligible for the FEIE?

 

The IRS website says, 

 

"you must be one of the following:

• A U.S. citizen who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year,
• A U.S. resident alien who is a citizen or national of a country with which the United States has an income tax treaty in effect and who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year, or
• A U.S. citizen or a U.S. resident alien who is physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months."

Thanks!

The way I read the IRS instructions, in my husband's case as a K1 in AoS limbo who doesn't meet the residency tests (green card/substantial presence test), if we choose to file Married Jointly then we must submit a letter stating that we are electing to have him treated as a resident alien. At that point we follow the rules of reporting for a resident alien. 

"Generally, a married couple can't file a joint return if either spouse is a nonresident alien at any time during the year. However, if you were a nonresident alien or dual-status alien and were married to a U.S citizen or a resident alien at the end of 2021, you can elect to be treated as a resident alien and file a joint return. See Pub. 519 for details." 

Pub 519 pg 9 "Nonresident Spouse Treated as a Resident"

"If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a U.S. resident. This includes situations in which one spouse is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other spouse is a nonresident alien at the end of the year.
If you make this choice, you and your spouse are treated for income tax purposes as residents for your entire tax year. Neither you nor your spouse can claim under any tax treaty not to be a U.S. resident. You are both taxed on worldwide income. You must file a joint income tax return for the year you make the choice, but you and your spouse can file joint or separate returns in later years."

So if I'm reading this right, my husband would be treated as a resident alien and either the second or the third bullet would apply? It does not specify that it has to be 2021 tax year just a tax year/any period of 12 consecutive months.

This is where my confidence drops. At the same time, my husband didn't make more than $30k last year in France so it shouldn't be that bad for us per what Wuozopo stated.

Thank you both so very much for the responses! I feel much better about having a place to start now. 

I am having a terrible time understanding what needs to be done with taxes for myself and my husband. My husband came on a K1 from France and married in August 2021. From reading this forum and the IRS instructions it seems he would be considered a non resident alien for the 2021 tax year. At the same time it seems like there would be benefit for us to final Married - Filing Jointly regardless of this. Before now I've always had extremely simple taxes which only needed the very basic of tax programs to file with... I'm extremely intimidated about filing taxes for 2021. If anyone has general advice or the ability to answer the following questions it would be greatly appreciated.

Information that might be useful to answer questions:

- Husband arrived in the USA Aug 2021. We married that same month (Aug 2021).

- He was employed in France until the end of July 2021, his last paycheck was received before he landed on US soil

- He has two bank accounts, one of which is a savings account that earns very little interest and the other seems to be what we might consider a checking account (its attached to his debit card). Neither account has much money in it and we have transferred some of the money to our joint checking account here in the USA. 

- We reside in Wisconsin

- I have only one source of income which is my job. We did receive gift money from family for our marriage as well as for Christmas.

- He got his SSN shortly after arriving

- He is not working and has not worked since arriving, we have not received his work permit yet

Specific Questions:

1. In our case is it better to file jointly instead of separately? 
   • If so, is it possible to prepare the taxes using a program? (I understand we must file by mail to add a letter that opts us into filing jointly)
     • If yes, what tax program would be best for our case?
   • Do we need some sort of documents from his French bank accounts as well as his previous employer? They don't really get W2s and their taxes are filed at a different time and in a different way...
   • Is the interest on his savings account considered income? 
2. I am having trouble determining what needs to be done for state taxes, I have read some information available but it is not as detailed for non resident aliens as federal taxes with the IRS. If we file jointly for state do we report his foreign income at all since it wasn't earned in the state? 
3. Is there a template or standard wording for the letter we need to attach to our return to state we opt into filing jointly while he's still considered a non resident alien without income after he was on US soil?

Taxes have always been a source of anxiety for me, I have trouble understanding the document instructions and what is needed. Is there any other general advice? Should we just use a licensed tax preparer for this year?

I have a question about the supporting documentation for the I-134. The information online is a bit confusing as it seems to combine the supporting documentation requirements of the I-184 for the AoS stage with the I-134 at the Embassy Interview stage for K1. More specifically is it needed to provide past pay stubs as supporting documentation for the I-134?

The instructions on the I-134 do not ask for pay stubs and tax transcripts are only required if you are self employed. Many of the advice on forums talk about needing these for the I-134 and a lot of the forum responses here I've seen also specify it should be provided.

Instructions specify:

Submit in duplicate evidence of income and resources, as appropriate:
A. Statement from an officer of the bank or other financial institutions with deposits, identifying the following details
regarding the account:
(1) Date account opened;
(2) Total amount deposited for the past year; and
(3) Present balance.
B. Statement(s) from your employer on business stationery showing:
(1) Date and nature of employment;
(2) Salary paid; and
(3) Whether the position is temporary or permanent.
C. If self-employed:
(1) Copy of last income tax return filed; or
(2) Report of commercial rating concern.
D. List containing serial numbers and denominations of bonds and name of record owner(s)

I'm a bit in a fix with that though because since March I needed to go on FMLA (Family Medical Leave Act which is unpaid time off) full time for 2 and a half weeks and since I've been on intermittent FMLA (working part time). The employer provided short term disability approvals have been slow so my pay for the past 2 months is messed up and does not reflect my actual salary/income. Also, in this time frame my promotion took effect which changed my pay from hourly non-exempt to salary with a decent raise, but this also has delayed payroll in regards to the short term disability payments as the payout is different (hourly only gets a percentage while salary gets full compensation). I have one pay stub that says I made $0, another that has about 1/2 the pay I make in a month and since my short term disability got approved after the standard payroll cut off for the next pay period I'm not sure if it will be paid out on my next check either...

If pay stubs are not actually required with form I-134 wouldn't it  be best for me to not include them at my current stage since they do not reflect my income and only raise questions regarding my ability to sponsor? Is it still recommended? Please let me know what you recommend.

FYI:

I am the USC petitioner

Fiancé interview is through Paris

I meet the income requirement to be a sole sponsor of my fiancé but not enough where 1 check in 2 months shows that I am above the income requirement. 

10 hours ago, Jorgedig said:

OP, just to play devil's advocate for a moment....you may be able to pull off getting a visa to live in France.   However: without speaking a word of French, having physical/mental health issues, and relying on your fiance for absolutely everything, do you think that would work out for you long-term?  If you are an adult who is used to being productive and working and contributing to the world, how would you feel to suddenly be completely dependent on someone in a place where you cannot communicate in a most basic way?

To be perfectly honest, while there are pros and cons with both routes, I would be completely relieved with the aspect of not having to work. Suffering through life just to hold a job and an independent living, in my opinion, isn't contributing much to the world, and shouldn't be the only measurement to whether you're contributing to something. Not everyone is capable of surviving the constant hell of giving their entire life to work (this is what I am forced to do for this living) while struggling and suffering through disabilities. It is exhausting, I admire people who have the ability to do that, but I rather be happy and dependent than miserable, exhausted/drained physically/mentally constantly just to have a job, be independent and "contribute to the world."

I am not young and have been struggling alone for a very long time. It was our goal to begin with, once we have financial stability, for me to become a house wife that worked part time, volunteer or pursued my dream hobby which would actually contribute to the world more than me forcing myself in a job that makes me sick mentally and physically just for financial independence.  

I am lucky to have a very accommodating boss, but their patience with me and my difficulties isn't unlimited and at some point I will need to go on disability if I continue as I am now. The other reason why they are able to be so accommodating is because I basically am killing myself to meet their expectations and make up for my shortcomings, and I am reaching my limit of being able to keep this up. Please do not judge people on their ability to "contribute to the world" based on their independent finances and work status. It is very degrading to those of us who have physical and mental difficulties to be held to a standard we cannot meet because society and corporations insist on defining our worth by the job one has and how much suffering they can push through.

In terms of learning the language, this would be easiest if I lived in France without a job. My time would be spent focused on learning the language (this is something I have extreme difficulty with now because of work stress/exhaustion), I would be required to take classes in France for such purposes, and my Fiance and his friends would help. 

There are stressful conditions to either option we choose, but me losing work and being dependent on the OP is not one of them. We are weighing our options and the pros and cons to each on a scale, but to properly do this we need information which is why we asked the question.

Thank you to everyone who has taken the time to respond to our questions.

Looking at the countries you listed and a few others, I really don't think marrying in a 3rd country is and option for us. It costs a lot more money and/or requires my ability to travel for an extended period of time, which i don't have the luxury of having. We only want a civil marriage and will not have a lot of witnesses available to us, even less if they have to travel to a 3rd country. There won't really be a ceremony of any kind until much later in our marriage due to finances and issues between families. Our marriage is more like an elopement so we can start our lives together at this point in time. 

5 minutes ago, aaron2020 said:

3.  The million dollar question.  Here are the two things to consider.  1) Does it matter where you marry?  US? France?  Another country?  2) What is required for you to immigrate to France?  Can you legally go to France as a tourist and get residency and work authorization?  

1) I do not have the amount of paid time off needed, or the ability to take leave to travel to a 3rd country for us to marry. My physical health is also another road block for lots of traveling, one reason why the OP has always come to the US to visit me and not the other way around. Traveling tends to get me sick for extended periods of time. The additional finances needed to marry in a 3rd country is also something we'd like to avoid. Is there a list of countries that allow civil weddings when you are not a resident of the country and supply a recognized marriage certificate?

2) Immigrating to France via Spouse visa is very simple, however, immigrating to France without already being a spouse is difficult (seems that way for every country, being a Fiancee and not a Spouse honestly sucks when it comes to immigration)  ---

a) This is the reason we sought to marry in the USA, have our marriage recognized by the French Embassy, then have me immigrate to France on a French Spouse Visa which requires minimal paperwork and does not have the same restrictions of the long stay visa, and why we are posing these questions. I would take courses by the government to learn french and civic classes under this route.

b) Without an already recognized marriage, I would need a long stay visa, which would be very difficult for me to get given the requirements for it. I need to quit my job to go to France, I would also not work, given my physical and mental health (this is one of the reasons we chose K1 in the first place), even when I am allowed to work. This is where our difficulty comes in for long stay visa as you need to prove that you have the money to support yourself in France while on said visa to be approved (roughly 2500 euros per month they expect). I also do not speak french, not even a little bit, this is also a negative for long stay visa. The amount of paperwork, certified translations through only accepted translators, the defined expiry of said paperwork  and the time frame of each process (obtaining long stay visa and the marriage application) create a very stressful process that must be extremely carefully times and does not allow for much error or delay. Its doable, but the amount of stress involved is not very agreeable if there is another way.

Hello,

I, the OP's fiancee, am the US Citizen in this situation. To clarify:

In Fall 2019, when researched, we believed K1 was the best route for us as I am established (there is an age gap) and would have much more to give up (we would be financially more stable).

K1 was filed March 2020, the OP is the beneficiary, a French citizen, and our K1 has not been adjudicated by USCIS yet.

What are our options from here since a process has already been started...

Many things have happened since COVID. We have had many difficulties come up as roadblocks  to our engagement and relationship, most involving his family, some involving the uncertainty introduced into the US Immigration system due to COVID and some other potential changes to my financial situation. 

It is now being considered for me to immigrate to France instead of the OP immigrating to the USA. This would potentially solve many of our newly developed road blocks. Marrying in France and immigrating is very complicated and daunting due to the amount of documentation a US Citizen needs to marry in France (French system loves paperwork and specific translation requirements, more than the US system). For this reason we think it might be best to still marry in the USA.

1. So would he still come under the K1, we marry within the 90 days, then we go through the paper work with the French Consulate to have me immigrate to France for a few years?

2. Would this cause any problems down the road when we decide to come back to the USA (we still want to have our future life together in the USA, the move to France would most likely be temporary 3-5 years)?

3. Is there a better way to do this?

Thank you,

Also, none of this will happen until after the borders between US and France open...we're gathering information for our options.