F1 student with work permit and social security number and pending green card considered resident?

[method1491]

I am planing to file married joint for f1 visa holder who got married in feb 2022 and has valid work permit and ss but still waiting on green card approval. Will she be considered a resident or non resident?

[tagteam]

@pk

[pk]

@method1491 , from your post , should I assume :

(a) you are the person married to  the F-1 holder

(b) you yourself are a US person ( citizen/ GreenCard / Resident for tax purposes )

(c) F-1 holder is sponsored  for Green Card by you  and not by employer

(d) the F-1 holder is  still on "exempt" status  and therefore  a "Non-Resident Alien "

If all of the above are true  then F-1 person is  still  Non-resident alien but indeed can file  jointly with you / US person spouse  --- need to send a note to the IRS along with return, requesting  that you both agree to treat the F-1 person as a resident for the year ( thus exposing whole year world income to US taxes  )  

Note application for GreenCard   by itself does  not bestow resident status,  neither does the marriage by itself ---- these  just bolsters the intent to stay. For tax purposes, there are two tests --- Green Card and Substantial Presence Test.   The request to be treated as a resident is voluntary  and is granted based on facts and circumstances.

Does this answer your query ?  Do you need more help on this ?

pk

[method1491]

Thank yoi so much for your response, I thought the time might of started when she recieved her employment authorization card. All the information you assumed were correct! She does have an f1 visa daring back from 2014 so I assume shel be considered a resident becuase of the 5 year rule?