File joint h1b tax return with spouse on b2 (visitor) visa?

[atlasthere]

I am on h1b visa and will be staying in the US on this status for the full year. My girlfriend and I are planning to get married here in the US considering travel restrictions. She will come to the US this year for 2 weeks on B2 visa and then leave after that. We are not planning to apply for H4 COS for her this year.

Can we file 1040 jointly for the year considering I will be on h1b for the full year and she will be in the US on B2 visa for 2 weeks?

If yes, would there be any issues getting ITIN for her while filing w7 with the 1040 considering she won’t be in the US while filing the return? Or should we get the ITIN before filing the tax return?

Please also advice if there is anything else we should consider to file a joint return to make the process smoother. Thank you.

Note: I know that we can make a choice to consider non-resident alien spouse of a resident alien as resident alien for taxes and file a joint return. For the complexity of my specific scenario, I would like to confirm if is it possible or not.

[LinaJ2020 · Accepted solution]

If you are referring to this year 2021, you can file jointly with your spouse by filing an election.  You will file a 2021 tax return next year in 2022.  TurboTax does not provide any tools or forms to assist you to make the election, unfortunately.  You would need to follow IRS's instructions to attach the statement to your 2020 tax return.  You cannot e-file.  Instead, print out all your tax forms along with the statement and paper-file.  Click here to see Nonresident to resident

If your spouse does not have an SSN or ITIN, you would need to apply for an ITIN for her. To do so, you must file a Form W-7 along with filing your tax return.  Without an SSN or ITIN, you won't be able to e-file either.  

To prepare your tax return in the program, here are the steps: 

• In the program, as you enter the information, leave the SSN space blank
• After entering all your information, print out returns and required forms ( write APPLIED in the spouse 's space) 
• As TurboTax does not support the Form W-7, fill out the forms by following
•  https://www.irs.gov/Individuals/General-ITIN-Information and attach to other required  documentation
• Submit both the Form W-7 and your tax forms to IRS Austin location in Texas.  ( see Form W-7 instructions)

[atlasthere]

Thank you so much for addressing my query. Just to confirm on this specific question, is there any minimum number of days requirement for my spouse to be present in the US for joint filing eligibility?

[DaveF1006 · Accepted solution]

Yes nonresident aliens married to U.S. citizens or resident aliens can choose to be treated as U.S. residents and file joint returns according to this IRS link.  There is no requirement for your spouse to be present in the United States. However, you do need to read the link that I enclosed above because there are specific requirements that may be pertinent to you.