My wife has a SSN, is not a US citizen/ GC holder, has no income. Her son does not have a SSN. What are my options for filing?

[Rich09]

My wife has a SSN, is not a US citizen/ GC holder, she has no income for 2017 in the US. Her son does not have a SSN. I'm trying to work out how best to file this year. She arrived late July, so not here 6 months, should I file married, or married filing separately? Is there anything to be aware of? 

Thanks!

[DS30 · Accepted solution]

In most situations, it is better to file as married filings jointly.

TurboTax - Married Filing Separately vs Married Filing Jointly

However, if your spouse is a nonresident alien (NRA), this can become more complicated because if you decide to file jointly (or even claim a spousal exemption for your NRA spouse while filing as married filing separately), your NRA spouse would need either a Social Security Number (SSN) or Individual Taxpayer Identification Number (ITIN). Also, if you wanted to include her son as your dependent on your income tax return, he would need to an Individual Taxpayer Identification Number (ITIN). To apply for an ITIN, you would use Form W-7 and would need to attached your tax return to this form. Please note, you will not qualify for the Earned Income Credit (EIC) without a valid Social Security number (not an ITIN) for yourself, your spouse (if filing jointly), and any qualifying children.

As part of including your NRA spouse on a jointly file return, you will also need to attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies (Nonresident Spouse Treated as a Resident). It should contain the following information:

•  A declaration that one spouse was a non-resident alien and the other spouse a U.S. citizen or resident alien on the last day of your tax year, and that you choose to be treated as U.S. residents for the entire tax year.
• The name, address, and identification number of each spouse.

Additionally, if you are including your NRA spouse on a jointly filed income tax return, your NRA spouse would have to include worldwide income (in USD) on your jointly filed return (although your NRA spouse may be able to have all or a portion of that NRA spouse's foreign earned income excluded under the Foreign Earned Income Exclusion and would be able to claim a Foreign Tax Credit on any foreign income that was not excluded under the Foreign Earned Income Exclusion).

Click here for more information about Claiming Non-Citizen Spouse and Children On Your Taxes.

Regarding your FBAR requirement if you hold joint foreign financial accounts with your resident alien spouse -

If you have foreign bank accounts, you may be required to file a Report of Foreign Bank and Financial Accounts (FBAR) if are a US citizen or resident and::

1. you had a financial interest in or signature authority over at least one financial account located outside of the United States; and
2. the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year reported.

Foreign financial accounts consist of all foreign financial accounts that you own separately or jointly or for which you have signatory authority over (such as a foreign business account that is owned by the business but for which you can sign checks or redirect funds).

To be directed to the US Treasury Government Website to prepare a Report of Foreign Bank and Financial Accounts, click FBAR (TurboTax does not support this form)

[Rich09]

Thanks! She is not a green card holder, does that change the advice? She fails the substantial presence test. She also earned money in the first 6 months of the year.

For FBAR, she has a foreign account, but it is only in her name.

[DS30]

Thank you for the additional information and yes that does change the answer - I have updated my answer to include this additional information. Also file she is considered a US resident and meet the FBAR requirements, then she will also have to file an FBAR for 2017.