Can I file as married jointly if my husband wasn't in the US for the year?

[manisha1552]

Hi everyone,

I am on a non-immigrant Visa status (work Visa H1B) which is referred as Resident alien and I got married last year (2022) Nov end. My spouse came to USA for the first time on March this year (2023). My spouse is on dependent Visa. 

Am I qualified to file tax as married jointly? (It saves a lot of tax for me).

I do know I need to get ITIN for my husband this year and attach 6013g form and file the tax before the deadline. I just want to confirm if I can file as Married jointly?

Thanks,

Manisha

[ErnieS0 · Accepted solution]

Yes. You can elect to file a joint return with your nonresident spouse. If you do, all your worldwide income will become taxable.

You can file an extension if you are not able to get an ITIN before April 18 with TurboTax.

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.

See Nonresident Spouse.

[manisha1552]

Thanks for the quick and valuable reply! Followup question, can my spouse be treated as a Non-Resident Alien even when he got the Visa stamped this year (2023) instead of last year?

[Vanessa A]

Yes, because in 2022 he was a nonresident alien. Your filing status is based on your status as of December 31.