If you are a resident by meeting the substantial presence test and your wife is now a nonresident, you can still file married filing jointly by making an election to treat her as a resident. You will both be taxed on your worldwide income.
You make this election by manually completing a statement that you attach to your return after printing your return. Your return will need to be mailed. The nonresident spouse will continue to be considered a U.S. resident and taxed on his or her worldwide income unless the election is terminated.
In situations where a U.S. resident is married to a nonresident, an election can be made under IRC § 6013(g) to treat that nonresident spouse as a resident alien for U.S. tax purposes by attaching a statement making the election to the joint return. The statement must include: (1) a declaration that the election is being made and that the individuals meet the necessary requirements; (2) the name, address, and taxpayer identification number (TIN) of each spouse; and (3) the statement must be signed by both persons making the election.
In the first year, the election is made, the couple must file jointly, however in subsequent years they may file either jointly or separately but the nonresident spouse will continue to be considered a U.S. resident and taxed on his or her worldwide income unless the election is terminated. It is also important to note that, pursuant to Treas. Reg. § 1.6013-6(a)(2)(v), individuals making this election are generally prohibited from claiming benefits under a U.S. income tax treaty as a resident of a treaty country. Any subsequent year in which neither spouse is a resident nor citizen of the United States, the election will be suspended for that year.
