Foreign Spouse, Never Entered US

[nicksharma]

Hello Tax Experts,

I am asking this question on behalf of my sister who is looking to file her 2020 taxes.

She was in the US on H-1B visa and worked on a project for almost the whole year 2020. She of course has a W-2 issued to her. She also has an SSN.

Her husband lives in India, and never traveled to the US during this period. He has a B1/B2 (Business/Tourist) visa but never applied for H-4 visa (dependent visa for H-1B).

She prefers to file jointly with her spouse as that gives her a refund but she owes money if she files married filing separately. My question is - Is she eligible to file as "Married Filing Jointly"? If yes, then I presume that her husband is eligible for an ITIN? Will he need to show physical presence in the US to apply for the ITIN. If so, can he now travel to the US on B-1/B2 Visa and apply for one while he is here?

I appreciate your help and insight into this issue. Happy to provide any other additional information that you may need. Thanks in advance!!

-Nick

[Critter-3]

If you are a US citizen and your spouse does not have a Social Security number or an ITIN and you are not applying for an ITIN with the tax return then you can only file your tax return as Married Filing Separately.  Where asked to enter the spouse's Social Security number enter 999-88-9999.  You can only print and mail your tax return, it cannot be e-filed.  When you print the tax return erase the Social Security number for your spouse and manually enter NRA for non-resident alien.

See this TurboTax support FAQ for the procedure to print and mail a tax return using the online editions - https://ttlc.intuit.com/questions/1944348-how-do-i-print-and-mail-my-return-in-turbotax-online

Your spouse would only need to report their income if you were filing your tax return as Married Filing Jointly, applying for an ITIN with the tax return and you would 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 pages 6 and 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

 

 

[nicksharma]

Thank you Critter-3.

So, do I manually print and attach a W-7 along with the paper tax filing?

[DoninGA]

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@nicksharma wrote:

Thank you Critter-3.

So, do I manually print and attach a W-7 along with the paper tax filing?

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Yes.  As stated on the IRS website - https://www.irs.gov/individuals/how-do-i-apply-for-an-itin

Mail your W-7, tax return, 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 will only file a tax return to the address above once, when you file Form W-7 to get an ITIN. In subsequent years, when you have an ITIN, you will file your tax return as directed in the form instructions.

[nicksharma]

Thank you  DoninGA!

[AmeliesUncle]

I just want to emphasize what Critter said:  (1) They need to make the election to treat her spouse as a Resident, and (2) If they do that her spouse's income also needs to added to the US tax return.

So depending on the circumstances, in some cases it would be better to file as Married Filing Separately, rather than Jointly.