I am a spouse of a foreign diplomat. We are not US citizens but living in the US at the moment. I work for a US company. Should I file my tax separately in this case?

[yunweic0430]

Her income is from the government in Taiwan so she doesn't have US income. I do have US income working in a private US company. I think we might be considered nonresident aliens?

[ToddL99]

Please clarify your status - are you permanent residents of the U.S. ("green card"), do you have SSNs or ITINs, and how were your 2020 earnings reported to you by your US employer?

[yunweic0430]

Hi Todd. I am not a permanent resident or green card holder. I am authorized to work in the US by EAD (Employment Authorization Document). I have SSN and my 2020 earning was reported by my US employer.

[ToddL99]

Were your earnings reported on Form W-2 with SS and Medicare taxes withheld & paid?

[ToddL99]

For U.S. tax purposes, you are considered a U.S. resident if you meet the substantial presence test for 2020. You meet this test if you were physically present in the United States for at least:

1. 31 days during 2020; and

2. 183 testing days during the 3-year period of 2020, 2019, and 2018, as calculated using the chart for Substantial Presence Test

Since your spouse does not have any U.S. income and, presumably, does not want to be treated as a U.S. citizen for tax purposes, you must file a separate return (i.e. Married, Filing Separately).

(You can't file single if you were married on December 31, 2020).  

Important: You can't prepare and print a tax return in TurboTax without an ITIN or SSN for you, your spouse and any dependents. 

The work-around for this situation is to use "Dummy" SSN/ITINs for your dependents. to prepare the return. You can use your own SSN/ITIN with different last numbers.  

Or use "305-44-0001, 0002, 0003 etc.", a dummy number we use for training. 

This should allow you to get through the Smart Checks and Reviews and print your return for filing by mail. "Erase" or white-out the dummy SSN/ITINs and replace with "NRA".

If you do not pass the "Substantial Presence Test", you can file Form 1040-NR. See Does TurboTax handle Form 1040NR for nonresident aliens? for further instructions.

[yunweic0430]

Yes. I already imported my W-2 from Trinet. It shows Tax withheld amount. And I have social security number.

[LinaJ2020 · Accepted solution]

Although you are not a green card holder, if you both have stayed in the US and met the  Substantial Presence Test SPT, you both are considered as a US resident for tax purposes.  You are not considered as nonresidents.  If your spouse is an employee of a foreign government including Taiwan government, you may be able to exempt her foreign government compensation from U.S. income tax either under a provision, if one exists, in an applicable tax treaty or other international agreement, or by meeting the requirements of U.S. tax law.  

For more information, click here:

Foreign embassy

Self-Employed Tax

[Derryn Bracey]

I'm going through this same issue myself. Unfortunately I don't quite have the answer yet to what I need to do for my tax filing as the spouse of a foreign diplomat, who was employed at a US company under an Employment Authorization Document.

However I want to point out that holders of A-1 or A-2 visas are "exempt individuals" and do not pass the Substantial Presence test. Therefore I believe we are non-resident aliens - so maybe tax form 1040NR is the way to go? (I'm not sure)

[AmyC]

You are correct that  an A-1 or A-2 holder would be exempt and considered as nonresident. See Publication 519, U.S. Tax Guide for Aliens for more information. It includes:

You're a resident alien of the United States for tax purposes if you:

• Meet the green card test; or
• Meet the substantial presence test

You are advised to contact Sprintax to file your taxes.

@Derryn Bracey