Can my undocumented immigrant fiance be declared on my tax return as a dependent? We have lived together for 2 years at the same address. I am a US citizen.

[SweetieJean]

Does fiancé have an ITIN?

[jmcc222]

Actually she has a social security number which was applied for and approved before her K-1 visa expired  

[SweetieJean]

Why haven't you gotten married?

[jmcc222]

Originally we had some relationship problems that later got resolved and we recently had a child together.  We are planning a wedding and will apply for her greencard after the wedding. In the meantime, although the Turbotax menu indicates that she must be a US citizen or resident alien (i.e. green card holder) in order to be declarable as a dependent, I have read on several websites that if she meets the "substantial presence" test, she is to be considered a "resident for tax purposes" and therefore can be claimed as a dependent. This appears to contradict the turbotax guidance (sorry turbotax, correct me if I'm wrong!)  

[MinhT]

Unfortunately, you cannot claim your fiance as a dependent even if you supported him. One of the tests to claim a dependent is that he must be a U.S. citizen or U.S. resident alien and have a SSN or ITIN.

[SweetieJean]

Fiance has an SSN.

[MinhT]

She must be a U.S. citizen, a U.S. national, a U.S. resident, or a resident of Canada or Mexico. And she must satisfy the tests for a Qualifying Relative.
<a rel="nofollow" target="_blank" href="https://turbotax.intuit.com/tax-tips/family/rules-for-claiming-a-dependent-on-your-tax-return/L8LODb...>

[jmcc222]

what about the "substantial presence" test? she seem to meet this requirement as she has been living in the US with me every day for the past 2 years since she got here

[MinhT]

<a rel="nofollow" target="_blank" href="https://www.irs.gov/taxtopics/tc851">https://www.irs.gov/taxtopics/tc851</a>
She is considered a resident alien for a calendar year if she meets the green card test or the substantial presence test for the year.
The problem is that she has overstayed her K-1 visa and is now considered undocumented.

[jmcc222]

I have further researched this and it appears that an undocumented immigrant can be considered as a "resident alien" for tax purposes if they meet the "substantial presence" test.  Overstaying her visa and being considered undocumented addresses her immigration status but this has no bearing on her tax status.

[MinhT]

Then you can use <a rel="nofollow" target="_blank" href="https://www.irs.gov/taxtopics/tc851">https://www.irs.gov/taxtopics/tc851</a> to consider her as a resident alien and claim her as a dependent if she satisfies all the other tests for a qualifying relative.

[jmcc222]

May I suggest that Turbo tax further expand their menu to ask such questions as to allow the user to determine whether or not he is a "resident alien for tax purposes"  as  the Turbotax menu in its current form does not lead the user to the proper conclusion we have come to.