I am a US Citizen who married a J1-Visa Teacher w/ SSN and has a child J2 (No SSN). Can we file jointly as married? Can we claim J2 dependent and child care expenses?

[dejjbb]

We have lived together for two years. She has been working on a J1 visa here for 2 years and now her 3rd year. We married in 2016.

[DDollar]

Yes, you can file Married Filing Jointly.  Yes you can claim the child (if they otherwise qualify as a dependent).  The dependent must be a citizen or national of the United States or be a resident of the United States, Canada, or Mexico for some part of the calendar year in which your tax year begins. Get Publication 501, Exemptions, Standard Deduction, and Filing Information for more information.  The dependent must have a Social Security Number or ITIN. 

If your spouse qualifies as a Resident Alien for the tax year, you simply file a joint return.  If your spouse is a Nonresident Alien you have two choices:

Option 1

Treat your spouse as resident alien for tax purposes.   If you do this, you will need to include your spouse's worldwide income in your US tax return and it will be subject to US taxes.  To do this follow these steps.

1. Attach a statement to your tax return, signed by both spouses, that states that one spouse is a nonresident alien and the other is a U.S. citizen or resident alien, and you are choosing to both be treated as US residents for the tax year.
2. List the name, address and Social Security number (or Individual Taxpayer Identification number) of each spouse. If your spouse has a social security number you will use it.  If not, you will need to apply for a number using Form SS-5.  If your spouse is not eligible to apply for a Social Security number, complete a Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN) (http://www.irs.gov/pub/irs-pdf/fw7.pdf).  This form will be attached to your tax return.  Turbo Tax does not support the Form W-7.  You can complete it outside of Turbo Tax.  You will have to print, sign and mail your return in if you are using Form W-7.
3. For the first year you make the choice, you have to file a joint return. In later years you can file joint or separate returns. Married Filing Jointly will give you a higher standard deduction and has other benefits that are not available using a married filing separately status, but you do have to include your spouse’s worldwide income in joint income.
   

Option 2

Treat your spouse as a nonresident alien for tax purposes. You will not have to include your spouse’s non-US income on your U.S. tax return. You will have to use the filing status of Married Filing Separately.

• If you file as Married Filing Separately AND your spouse has no income from sources within the US AND is not claimed as a dependent of another US taxpayer, you CAN claim an exemption for your spouse. You will need either a social security number or an ITIN for your spouse to claim the exemption.

https://www.irs.gov/Individuals/International-Taxpayers/Nonresident-Spouse-Treated-as-a-Resident

If everyone on the tax return has a social security number or ITIN, you should mail your return to the address listed in the 1040 instructions.  Tax returns with a Form W-7 should be mailed to the Austin TX address.

[dejjbb]

Thank you for the answer, this clears up a lot. It looks like I would have to use option 1 because my spouse was tax exempt for the first 2 years which makes the presence test fail. Considering in 2016 my spouse had 167 days but 1/3 is ~57days plus 31 this month is less than 183 days needed.

My new question is... what form is used to show worldwide income as my spouse has none anyways? My spouse does have an SSN number so W-7 form would not be needed, however it would be needed for the J-2 visa holder to claim as a dependent.

By making the statement we wish to submit jointly as US Resident, does that also apply down to the J-2 visa holder?

[1202aniket]

Hi, I am in a similar situation as my wife is on a J1 and I am on H1B. If we decide to treat her as a resident alien and decide to to file married filing jointly, can both of us get standard deduction?

[DavidD66]

According to the IRS:

Generally, an alien in H-1B status (hereafter referred to as “H-1B alien”) will be treated as a U.S. resident for federal income tax purposes if he or she meets the Substantial Presence Test. The test is applied on a calendar year-by-calendar year basis (January 1 – December 31).

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a U.S. resident. This includes situations in which one spouse is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other spouse is a nonresident alien at the end of the year.

If you make this choice, you and your spouse are treated for income tax purposes as residents for your entire tax year. Neither you nor your spouse can claim under any tax treaty not to be a U.S. resident. You are both taxed on worldwide income. 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.

[rohitj]

hi .. pls suggest, wwere you able to file jointly with your wife being J1 non resident 

[ErnieS0]

A U.S. citizen or U.S. tax resident can elect to file a joint income tax return with a nonresident spouse.

See Nonresident Spouse.

The nonresident spouse (and child, if applicable) will need Social Security numbers or ITINs. You can apply for those in advance and wait or you can file your ITIN application and income tax return together.

You can apply for an ITIN and file an income tax return at the same time by including your Form 1040 with your W-7 applications. Enter "ITIN TO BE REQUESTED" wherever your spouse’s SSN or ITIN is requested on the tax form (you’ll have to write this in on TurboTax).

Mail everything to:

Internal Revenue Service

ITIN Operation

P.O. Box 149342

Austin, TX 78714-9342

For detailed instructions refer to Instructions for Form W-7.

@rohitj