topic Non-resident aliens spouses in After you file

Non-resident aliens spouses

4m4nd4 — Wed, 22 Jan 2025 22:20:47 GMT

My husband and I have a work permit as Asylum seekers and this is our second year filing taxes. The first time we filled as Married filling jointly but I am not sure if we are considered non-resident aliens or if for tax purposes we qualify to file as residents under the substantial presence test.

When completing our W-4 we marked Married filling separately since we are non-resident aliens but I am not sure now that affects the way we fille taxes too.

Re: Non-resident aliens spouses

ThomasM125 — Thu, 23 Jan 2025 19:43:25 GMT

To file as a resident under the substantial presence test, you have to have been in the U.S. at least 31 days in the current year and 183 days during the 3 year period that includes the current year and the 2 years immediately preceding the current year, with certain conditions as mention here from Tax Topic 851 from the IRS:

Since you are married, you can file as married-joint and that is usually better, but you can try it both ways to see which is best.

If you determine that you are not a resident, you can use Sprintax to file a non-resident tax return.

[Edited 1/23/25 at 11:42 PM EST]

@4m4nd4

Re: Non-resident aliens spouses

Opus 17 — Thu, 23 Jan 2025 19:06:49 GMT

You are considered resident aliens if you pass the substantial presence test OR have a green card. If you pass the substantial presence test, you are a resident alien even if you are not in the US legally, or you are in the US legally on a temporary basis but not authorized to work. (The IRS does not inform to immigration if you are working without authorization, they just want their money.)

https://www.irs.gov/taxtopics/tc851

If you were in the US for at least half of 2024, you pass the substantial presence test and it is fine to file married filing jointly and use Turbotax. How you filled out your W-4 does not matter, that is just used so your employer can calculate your withholding. If you had excess tax withheld, you will get a refund.