Should spouse waiting for green card file as resident alien or non resident alien?

[ebrookbank]

My husband and I got married in January 2022. He entered the country on a K-1 (fiance) visa in December 2021. In February 2022 he applied for adjustment of status and is now waiting for his green card. He does not have a social security number. I saw in another post that I have a choice when filing taxes to file with him as either a resident alien or nonresident alien, but the post did not explain how to choose the best option.

I also want to make sure I choose the right status for his immigration purposes. I don't want the status we choose to somehow negatively impact his immigration process!

So far, he has no income this year. He has not worked at all since in the US because he was not allowed to on the K-1 visa and he has not yet received his work permit. So, my question is what status we should file with him as for the 2022 tax year--resident alien or nonresident alien? Does the answer change depending on whether he ends up having any income for 2022? Thanks!

[johnd84 · Accepted solution]

Hi ebrookbank,

Thanks for your question. I suggest you consult an immigration attorney first if you are concerned about the immigration process. 

As far as your 2022 tax return (***please note your 2021 tax return is different): You have to file married. Your husband will need a TIN in order to efile, and you can find a link to apply for that here: TIN application IRS.gov   You should have plenty of time to apply since 2022 isn't due until October 15, 2023 with an extension. Since your husband has been in the US all of 2022 he will meet the substantial presence test and will be a resident alien. Please see this link for additional information: TurboTax residency faqs Thanks so much!