My spouse lives abroad

[JayFarok]

My wife lived at our residence here in Minnesota as conditional permanent resident for the first 4 months of 2024 (and four years before that). Then she traveled abroad to visit her mother, and her residency expired while she was there. Her residency became null and void and we were asked to repetition for a new spousal visa (go through the entire process again). Anyway, she worked for the first 4 months while she was here. How do I go about filing our taxes since she's no longer a resident and is living abroad?

[Vanessa A]

You can still file as Married Filing Jointly or you can file as Married Filing Separately. She can still choose to be treated as a US Resident for tax purpose for the entire year which would just mean she would include both her US income and her foreign income (if any) on your return.

You can also file a separate return.  You can also file a separate return. You would include only your income on your return and then she would need to include all of her income on her income for the 4 months she lived here and the rest of the income she earned worldwide since her permit expired assuming she did not take steps to renounce or terminate her residency.

@JayFarok (Edited 2/24/2025 @12:15PM PST)

Married Filing Joint versus Separate

[Opus 17]

I'm going to ask for an expert here, @pk

As said, you can file married filing jointly or married filing separately.  If jointly, you must report all your spouse's worldwide income, including income she earned overseas (you may be able to claim a credit if she also paid income tax overseas on the same money).

If filing separately, you report only your own income, deductions and credits.

However, if you file as married filing separately, your spouse also must file a US tax return.  Since she passes the substantial presence test, she would be required to file as a US resident (married filing separately) and report and pay income tax on all her world-wide income.  So there is not much advantage to filing separately. 

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

She might be considered a dual-status alien, which would allow her to pay US tax on her US income but not her overseas income, but this is complicated and I don't know all the rules.  You say she is intending to return to the US as soon as approved?  This might rule out the dual status situation.  I need to ask an expert. @pk

https://www.irs.gov/individuals/international-taxpayers/taxation-of-dual-status-individuals

[Opus 17]

And one other note, if you file jointly and e-file, you can "sign" for her (include her PIN) based on her verbal agreement.  If for some reason you need to file by mail, there are a couple of ways to make that happen, reply and we can give you some ideas. 

[pk]

@JayFarok , having read through this thread and responses/comments  by my colleagues @Opus 17  and @Vanessa A  and generally agreeing  with them, I still have  a few questions :

(a) Assuming that you are a US person ( citizen/GreenCard )  and married  to  a person  ( which country )  that  had  a conditional  GreenCard ( valid for two years  at a time ), when was her  renewal due ( date ) ?

(b)  Since  had had at least one renewal  ( you said four  years as  conditional GreenCard ), when in  2024 was the  renewal due  ?   I am trying to understand  at what point in 2024 did the  immigrant visa expire ?

(c) Which country is she from ? 

(d)  You said she worked for four months in the USA in 2024 .  Was this a W-2  eligible job or was she  self-employed ?  If W-2, then did she receive the W-2 for the 2024 filing ?

(e)  Did she take any action to tell the  Immigration services that she  has abandoned/lost her status ?  Did she declare  to another country that she is legal resident of that country ?

In general, though  once you pass the GreenCard test you are a resident for the entire year ( absent  abandonment action or expiration of  the immigration status).  You may still be  a US person for tax purposes ( depending on exact facts and  circumstances ).

I will come back once I hear from you  -- you can post details here  or PM me   ( No PII -- Personally Identifiable  Information ).

[JayFarok]

Hi again,

She was issued a visa and granted entry into the US with a Conditional Green Card back in 2020. We forgot it was a conditional green card and the USCIS failed to mail out form I-751 (to remove conditions tied to her residency). We thought we just had to go to the USCIS office and renew the card to a 10-year permanent resident card through with the I-90 form. This was around the covid19 pandemic, so it was difficult even setting up an appointment.

We finally did get an appointment where they did my wife's biometrics and submitted her application for the renewal of her green card. At no point during the process did they inform her that she had to file the form I-751 to remove the condition on her residency first. You would think that alert would pop up on their screen, but I guess not. They just went ahead and processed her I-90 application (a normal renewal). We thought we did everything right. Afterall, we figured if there was a discrepancy, they would have caught it and let my wife know right away. Anyway, now it was a waiting game to get her new card. We received a letter from USCIS to use in conjunction with her expired card to extend it by 12 months. Close to the end of the 12 months, they sent another letter to use in conjunction with her expired card to extend it for another 24 months. The process was taking way too long and my wife had to go visit her sick mother in Indonesia...two weeks into her vacation, they finally came to their decision on her application and reject it due to the fact that she was supposed file form I-751 to remove conditions first. They made us wait 2 years only for them to reject it. Had they told us right away, we would have filed the correct form and none of this would've happened. Anyway, since she was now abroad, she could not file for an adjustment, and we had to repetition for her. I filed the petition last June and we're still waiting for them to review her application. By the looks of it, it might be another couple of years or more before she is granted re-entry. Her W-2 is normal, like mine, and I received it in the mail. We've filed our taxes jointly last year and the year before with TurboTax. I'm not sure how to do it this year with her current situation, because she's technically not a resident or anything anymore and is reapplying for an immigration visa from scratch. I read somewhere that the SSN doesn't expire and in situations like this, the individual will have the same SSN once the re-enter. Sorry for the long explanation but I wanted you to have a complete understanding of the situation. What are my options?

[DaveF1006 · Accepted solution]

You may still file jointly. Since your wife is still not a resident, you will need to indicate that she is a non resident that you wish to treat as a resident for tax filing purposes.  Unlike previous years, there is a statement attached to your return reporting you are making this choice. I will include a screenshot below where you will make this choice.

Remember, to be treated as a resident for tax filing purposes, both of you must include your worldwide income on your return.  Here is the screenshot I mentioned above.

[pk]

@JayFarok , thank you for sharing this background info.

From a  US perspective:

(a)  US  does have Tax treaty in effect with Indonesia and thus  double taxation relief  is available.

(b)  As has been mentioned above ( and because   your spouse 's adjustment application is in  process ), it may be beneficial to file MFJ, include her world income and use her Tax ID ( in this case SSN ).

(c) IRS has only two categories of  taxpayers --   Tax Resident  ( Citizen/GreenCard / Resident for tax purposes ) and Non-Resident.  Since her immigration status is undetermined  ( post June of 2024 ? ) and she is  abroad but married to a US person, it would be safe  to treat her as NRA.  This would open the door to  "request to be treated as a resident for the entire year ". 

(d)   Regrading end-date of Residency :   

Residency ending date under the green card test

Your last day of presence in the United States as a lawful permanent resident of the U.S. is the residency ending date under the immigration laws of the United States.

However, you are still considered to be a resident of the United States for U.S. income tax purposes, until you:

1. voluntarily turn in your green card to USCIS and renounce your U.S. immigrant status;
2. have your immigrant status administratively revoked by USCIS; or
3. have your immigrant status judicially revoked by a United States federal court.

Therefore my conclusion is that your MFJ path will need a letter signed & dated  by both you and your spouse, asking for her to be treated as a  tax resident ( opening her world income to US taxes ).  Note  that this choice would remain valid for all future years.  This may require you  to  file by mail.

On the immigration question, I would strongly recommend the  services of an immigration lawyer, at least under the current  backlog.  Perhaps you should also  request a K visa  so she can  come back  to her home while the GreenCard issue is settled.

Is there more I can do for you ?

[JayFarok]

I went ahead and filed our taxes jointly based on the information you provided. Thank you for your time and response.