My spouse qualifies as a resident alien. She does not have an ITIN, and we are about to file for her green card. Can we file Married Filing Jointly?

[nathansmarked]

She may not receive her SSN through green card application for many months, so an extension may not be sufficient if we want to wait for it. Also, Turbo Tax is suggesting that we could be eligible to receive an additional $1400 because my wife did not receive the 3rd stimulus check. Is this true?

[DoninGA]

If you decide to file your tax return as Married Filing Jointly you must apply for an ITIN with the tax return and you would need to be providing a statement with your tax return that you want your Nonresident Alien Spouse Treated as a Resident.  See IRS Publication 54 Tax Guide for U.S. Citizens and Resident Aliens Abroad page 7 - https://www.irs.gov/pub/irs-pdf/p54.pdf

Go to this IRS website for ITIN information - https://www.irs.gov/individuals/international-taxpayers/general-itin-information

[nathansmarked]

You are not supposed to file for an ITIN if eligible for a Green Card, as my wife is. Also, she qualifies as a resident alien--she is not a non-resident alien.

[DoninGA]

Then you will either have to file as Married Filing Separately now or request an extension to file which will give you until October 17, 2022 to file your return.  Hopefully her green card application will be approved before then so she would have a Social Security number.  Then you would be able to file as Married Filing Jointly and she would be eligible for the Recovery Rebate Credit of $1,400.

[nathansmarked]

Ok thank you. I spoke for a while with a Turbo Tax Live rep who, after some time researching, said that we can paper file MFJ by leaving my wife's SSN fields blank and attaching letters stating that she is in her green card process and cannot apply for an ITIN. Does this sound right to you?

[DoninGA]

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@nathansmarked wrote:

Ok thank you. I spoke for a while with a Turbo Tax Live rep who, after some time researching, said that we can paper file MFJ by leaving my wife's SSN fields blank and attaching letters stating that she is in her green card process and cannot apply for an ITIN. Does this sound right to you?

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No, that does not sound right to me.  You would do that if you were applying for an ITIN and the return would be mailed to the IRS office for ITIN's.

We have someone well versed in these types of situations, so will ask for assistance @pk are you available?

[pk]

@nathansmarked , having read through the above interaction(s)  and  agreeing with answers  by @DoninGA ,  I am a bit perplexed by the situation -- please can you answer the following :

1. Your own immigration status -- US citizen/ Green Card / Resident for Tax purposes  etc.

2. What visa is your wife  under ?  When did she enter the USA  and with which visa ?  Which country is she a  citizen of ? Has she been here in the USA continuously since her original entry ?

3. When did you get married and where  ( 2021?  In the USA ? )

4. Do you have any children  ( born in the USA ? ) ?

5. Is your wife working or a student or what ?

6. When did she apply for the Green Card ?

7. Did she file a return for 2020 and if so under what status ?

Once I hear from you , I will follow up 

Stay safe 

pk

[nathansmarked]

Thanks for responding. Answering your questions:

1) I’m a citizen

2) Tourist B-2 visa, she entered in Nov ‘20 and has been in the US since. She’s Colombian 

3) we married Dec ‘21 in the US

4) no kids

5) not currently working, studying English and plans on pursuing a masters degree here in the states 

6) we are almost finished with the green card application through simple citizen and will file soon, before we file taxes

7) she has not filed taxes in the US previously

[pk]

@nathansmarked , as I see it from your original post , all the interactions  and the current response ( I thank you for the quick and detailed answer ), there are multiple issues here :

(a) as far the original question of , if you can file MFJ with your wife -- YES.   Even though she does not have an ITIN , you can still file jointly, requesting that your spouse  be treated as a resident  -- this will indeed expose her world income ( if any ) to US taxes.  Till her status is changed from B-2 to a work visa or Green Card, she is eligible for ITIN  for purposes of filing a return ( in this case jointly with a US citizen)

(b) Till your spouse gets a work permission or status change ( allowing work ) she cannot get an SSN . 

(c) I am very confused about your reference to Economic  Impact Payment/Credit -- as a Non-Resident Alien, she is not eligible for such credit/payment.  Question here is  what happens when  an NRA is  treated as Resident for Tax purposes -- does that submission once accepted , make  that person eligible for economic Impact Payment , at least for the 2021 ( the tax year when he/she is being treated as resident for tax purposes .   I have to research  this a bit more , but I suspect  the answer would be  yes).

(d) Another concern I have  is that if she entered USA on B-2 ( a six month visa ) in Nov.  2020, even with an extension of another six months, by Dec 2021 , she would have been out of status---- thus creating an issue with the processing  the  Green Card  application.  Just wondering why did you not get a K visa or similar so she could be regularized.  What visa is she under now while being married ?  Is she in "out of status" ?   Perhaps  you should consult an immigration lawyer.  Since she has become a student, why did she not get her visa changed to F-1?

Here are two references  that may help :

ITIN / IRS ----https://www.irs.gov/instructions/iw7#en_US_202112_publink54092gd0e107

SSA -- https://www.ssa.gov/pubs/EN-05-10096.pdf

Does this answer your query or is there more I can do for you ?

pk