Can US citizen married to F-1 student File Jointly?

[yousefhesy]

Hello,

I am a US citizen and my spouse is an F-1 student currently on OPT. Can we file jointly?

[DDollar]

Yes. Since you were married on December 31, 2016 you have to file as MFJ or MFS. As a US Citizen or a Resident Alien, you have two choices in filing your taxes.

Option 1

Treat your spouse as resident alien for tax purposes.   If you do this, you will need to include your spouse's worldwide income in your US tax return and it will be subject to US taxes.  To do this follow these steps.

1. Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident alien, and you are choosing to both be treated as US residents for the tax year.
2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse. If your spouse has a social security number you will use it.  If not, you will need to apply for a number using Form SS-5.  If your spouse is not eligible to apply for a Social Security number, complete a Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN) (http://www.irs.gov/pub/irs-pdf/fw7.pdf).  This form will be attached to your tax return.  Turbo Tax does not support the Form W-7.  You can complete it outside of Turbo Tax.  You will have to print, sign and mail your return in if you are using Form W-7.
3. For the first year you make the choice, you have to file a joint return. In later years you can file joint or separate returns. Married Filing Jointly will give you a higher standard deduction and has other benefits that are not available using a married filing separately status, but you do have to include your spouse’s worldwide income in joint income.
   

Option 2

Treat your spouse as a nonresident alien for tax purposes. You will not have to include your spouse’s non-US income on your U.S. tax return. You will have to use the filing status of Married Filing Separately.

• If you file as Married Filing Separately AND your spouse has no income from sources within the US AND is not claimed as a dependent of another US taxpayer, you CAN claim an exemption for your spouse. You will need either a social security number or an ITIN for your spouse to claim the exemption.

https://www.irs.gov/Individuals/International-Taxpayers/Nonresident-Spouse-Treated-as-a-Resident

If everyone on the tax return has a social security number or ITIN, you should mail your return to the address listed in the 1040 instructions.  Tax returns with a Form W-7 should be mailed to the Austin TX address.

[Anonymous]

Can we just attach this statement and e-file if we both have social security numbers in this scenario?

[LinaJ2020]

No, you cannot e-file.  You have to attach the election statement to your Form 1040.  You will need to print out your tax forms and submit them by mail. To see more information, click here: https://www.irs.gov/individuals/international-taxpayers/nonresident-alien-spouse

@Anonymous

[Anonymous]

My wife has an F-1 visa so she was exempt from Medicare and Social security tax in 2019. If we choose to file jointly and treat her as a resident alien for tax purposes, it seems that she will not be exempt from these taxes. Is that correct?

How will can we pay those if that is the case?

[ThomasM125]

She will be still be exempt from the social security taxes. Social security is not a tax in the traditional meaning of the word, it is a contribution to your retirement fund held by the federal government. It only appears on your federal tax return in special situations, such as if you contributed too much social security during the year, you will get a refund by filing your federal tax return form 1040.

[Anonymous]

Thank you @ThomasM125

That seems to conflict with this info that I found on the IRS website for Aliens Employed in the U.S. – Social Security Taxes.

"F-visas, J-visas, M-visas, Q-visas. Nonresident alien students, scholars, professors, teachers, trainees, researchers, and other aliens temporarily present in the United States in F-1,J-1,M-1, or Q-1/Q-2 nonimmigrant status are exempt from Social Security / Medicare Taxes on wages paid to them for services performed within the United States as long as such services are allowed by the United States Citizenship and Immigration Services (USCIS) for these nonimmigrant statuses, and such services are performed to carry out the purposes for which they were admitted into the United States."

"The exemption does not apply to nonimmigrants in F-1, J-1, M-1, or Q-1/Q-2 status who become resident aliens for tax purposes."

[ThomasM125]

That appears to be true from what your research turned up, @Anonymous.

However, you cannot pay the social security tax in through your form 1040. You will need to contact the employer who paid the wages and see if they can pay the social security tax in by deducting additional amounts from future wages, or amending the W-2 form that was issued.

In the future, you should instruct the employer to withhold the social security tax.

[Oindry]

This Q&A has been very helpful. Thank you.
 have a question related to this,
I am a F1 visa holder currently I am on my OPT. I worked as an Intern last year and I did not pay FICA from my internship paychecks. I got married in September 2022 so we were thinking of filling our tax jointly for 2022. Now I have two questions/concerns.
1. If we do submit jointly, I will be considered a residence for tax purposes. But I do not work with the same company I worked for in 2022 as an Intern. Based on the earlier conversation what I am getting is that we need to file FICA if we file tax jointly. That means I will have to fix at least 3/4 months of my tax payment for last year. How do I do that or how much does that matter.  Do I need to fix that tax for 2022 to file Jointly?

2. I believe if I file my tax as Jointly, I will have to start paying FICA now right?

3. If I do not want to pay FICA for this year 2023, then should I avoid filling tax jointly?

[DaveF1006]

To clarify, what is the residence status of your wife? 

@Oindry 

[Oindry]

Actually I am the wife. My residence status is Non Immigrant. I am not a Greencard holder even. I am on a F1 visa status. My husband is a US citizen and as I mentioned, because of that I am allowed to file jointly. The question is how do I fix the FICA situation. I never paid FICA tax because of being on OPT or F1 visa status. Now if we file jointly I believe I need to pay FICA right? And how do I fix my 2022 tax then as I don't work with the same company.

[DaveF1006]

OK, here is how you will file.

1.  Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident alien, and you are choosing to both be treated as US residents for the tax year.
2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse. 
3. For the first year you make the choice, you have to file a joint return. In later years you can file joint or separate returns. Married Filing Jointly will give you a higher standard deduction and has other benefits that are not available using a married filing separately status, but you do have to include your spouse’s worldwide income in joint income.

This return, with the attached statement will need to be printed and mailed to the IRS. Turbo Tax will provide you with complete mailing and filing instructions. 

As far as the FICA matter, since you are stating for are being treated as a US resident for tax purposes but still identified as a nonresident alien, you still do not have a FICA reporting requirement until you actually become a resident alien or US citizen.

@Oindry 

[Oindry]

Can you send me an example of suck Statement that I need to attach where I can declare one spouce is non resident?

[DMarkM1]

There is no statement to elect to treat a spouse as nonresident.  If the US resident is not electing to treat the nonresident spouse as "Resident for Tax Purposes",  then the resident will simply file as married filing separately reporting only their income on form 1040.  The nonresident spouse with US income will file separately as well using form 1040NR to report US only income.  In F1 status the income is not subject to Social Security.  

If however, the couple elects to file a joint return then an election is made to treat the spouse as "Resident for Tax Purposes" as @DaveF1006 states.   If that resident election is made then the income earned by the F1 visa holder is subject to social security taxes.  (see reference below) and a corrected W2 or changes to social security withholding to capture the FICA taxes must be worked with the employer.  The FICA taxes are not handled on the form 1040.   

Here is social security exemption reference. (see the F1 visa...limitation).

[Oindry]

I get that but how can I fix my W2 for FICA when I dont work at the same company anymore? Can I just send my Tax And file it as a resident and then wait for IRS to ask for the extra FICA so I can pay them instead of dealing with my last company?