@Mata13100 Yes, you can file jointly if you meet the substantial presence test. If you can meet the requirements for this test, there are no restrictions for you to file jointly. To meet this test, you must be physically present in the United States (U.S.) on at least:
- 31 days during the current year, and
- 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
- All the days you were present in the current year, and
- 1/3 of the days you were present in the first year before the current year, and
- 1/6 of the days you were present in the second year before the current year.
If you do not meet the substantial presence test, you can still file jointly but there are some requirements that you must meet since you would be considered a non-resident alien for not meeting the terms of the Substantial Presence Test..
- 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. However, for Social Security and Medicare tax withholding purposes, the nonresident spouse may still be treated as a nonresident. Refer to Individuals Employed in the U.S. – Social Security Taxes .
- 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.
If you make this choice, you must attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:
- A declaration that on the last day of the tax year one spouse was neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A) and the other spouse was, 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. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)
When preparing the return, your spouse would need to be the taxpayer completing the return and then you will be reported as the spouse.
**Say "Thanks" by clicking the thumb icon in a post
**Mark the post that answers your question by clicking on "Mark as Best Answer"
