Married to a non-resident alien. Spouse will be present in the US for only ~30 days as a dependent

[Seminar9584]

I'm currently on an F1 STEM OPT extension and my tax status has recently changed to 'resident alien' due to my extended stay in the US for over five years. To be more specific, I filed 1040 instead of a 1040-NR for the first time in 2022 tax year.

In the beginning of 2023, I got married to an Indian national who has visited the US for approximately three months this year on a B1/B2 visa. She will be joining me as a dependent on an F2 visa in November.

Are we eligible to file a joint tax return for the year 2023?

Additionally, my spouse doesn't have any income from India, but she does receive rent from a flat. If filing jointly is an option, how should we go about including the rental income in our tax return?

[emina]

Hello, thanks for joining us today!

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a U.S. resident within the meaning of Internal Revenue Code (IRC) section 7701(b)(1)(A) and the other is not, you can choose to treat the nonresident spouse as a U.S. resident for tax purposes.

Election to file a joint return

If you make this choice, the following rules apply:

• You and your spouse are treated, for federal income tax purposes, as U.S residents for all tax years that the choice is in effect. 

• You must file a joint income tax return for the year you make the choice (but you and your spouse can file joint or separate returns in later years).

• Each spouse must report their entire worldwide income for the year you make the choice and for all later years unless the choice is ended or suspended.
• Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect. However, the exception to the saving clause of a tax treaty might allow a tax treaty benefit on certain specified income.

Based on this, yes, you may file a joint return and if you do,  you will need to report your spouse's rental income on your US tax return.

Reference link: https://www.irs.gov/individuals/international-taxpayers/nonresident-spouse