No - You cannot both file as married filing jointly on 2 separate US income tax returns.
If you are considered a resident alien as
of Dec 31, 2017, you can file jointly with your nonresident alien spouse
for the 2017 tax year. Otherwise, you will need to file as married filing separately.
Your US filing status will be determined if
you meet certain IRS tests - Green
Card Test or the substantial
presence test.
If you are a
Nonresident Alien who will become a Resident Alien under the Substantial
Presence test in the year following this taxable year, you may elect to be
treated as a Dual
Status Alien for this taxable year and a Resident Alien for the next
taxable year if you meet certain tests. Refer to the First Year Choice area,
under Dual-Status Aliens, of Chapter 1 in Publication 519,
U.S. Tax Guide for Aliens.
Click here for more
information about Claiming
Non-Citizen Spouse and Children On Your Taxes.
To include your
Nonresident alien (NRA) spouse on your tax return, if your NRA spouse does not
have a Social Security Number (SSN) or Individual Taxpayer Identification
Number (ITIN), you will need to apply for one. To apply for an ITIN, you would
use Form W-7 and would need to attached your tax return to this form (see
below). Please note, you will not qualify for the Earned Income
Credit (EIC) without a valid Social Security number (not an ITIN) for
yourself, your spouse (if filing jointly), and any qualifying children.
If filing as married
filing jointly, your NRA spouse will be treated as a US resident alien for US
tax purposes and all of your spouse's worldwide income in USD will be
subject to being taxable as a US citizen or resident alien.
For any foreign
income that was taxed in a foreign country that is also include on your US
jointly filed return, you will be able to claim a Foreign
Tax Credit on your US income tax return.
You will need to
file for an ITIN on Form W-7 and will attach a copy of your return to this W-7
filing. You will also need to attach a statement, signed by both spouses, to
your joint return for the first tax year for which the choice applies (Nonresident
Spouse Treated as a Resident). It should contain the following information:
- A declaration that one
spouse was a non-resident alien and the other spouse a U.S. citizen or
resident alien on the last day of your tax year, and that you choose to be
treated as U.S. residents for the entire tax year.
- The name, address, and
identification number of each spouse.
Additionally you
will need to mail your tax return along with your declaration statement, Form
W-7 and supporting documents to the IRS. According to the IRS, because you
are filing your tax return as an attachment to your (ITIN)
application, you should not mail your return to the address listed in the Form
1040, 1040A or 1040EZ instructions. Instead, send your return, Form W-7 and
proof of identity and foreign status documents to:
Internal Revenue Service
Austin Service Center
ITIN Operation
P.O. Box 149342
Austin, TX 78714-9342
You may also apply
for an ITIN using the services of an IRS-authorized Acceptance
Agent or visit some key IRS Taxpayer
Assistance Center in lieu of mailing your information to the IRS in
Austin.
