first year filing jointly and awaiting green card

[KurtB]

Dear Tax Professionals,

I am writing to request advice regarding my 2023 tax return. My wife and I were married in March 2023, and we are currently awaiting her green card, which is expected to arrive in mid-to-late October. Due to this, we have been unable to obtain her social security number and file our joint tax return.

In addition, I sold my home at a profit shortly after our marriage. We intended to file jointly to potentially reduce our capital gains tax.

We have already filed for an extension, allowing us to file by October 15th. Given the uncertainty regarding my wife's green card arrival, I am wondering if there are any options for filing jointly even if she does not have her social security number by the extension deadline.

Thank you for your time and assistance.

[kfenwick1]

You will not be able to file a joint return if your spouse does not have a SSN or ITIN.

Tax law states because you are married, you must file your taxes using either the Married Filing Jointly status or Married Filing Separately status.  Your spouse, will be considered a nonresident alien.

There are two options for filing your taxes.

Option # 1

Treat your spouse as a resident alien for tax purposes.   If you make this election you are required to include your 100% of your spouse's worldwide income on your US tax return and it will be subject to US taxes.  

To Make this election do the following:

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.  You will need to complete a Form W-7, Application for IRS Individual Taxpayer Identification Number (ITIN) Application for ITIN.  This form will be attached to your tax return.  Turbo Tax does not support the Form W-7.  You will have to complete it outside of Turbo Tax.  You will have to print, sign and mail your return if you file Form W-7.

3. For the first year you make the choice, you have to file a joint return. In later years you may 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 Individual Taxpayer Identification Number (ITIN) for your spouse in order to claim the exemption. For information on, and instructions on how to obtain an ITIN see the IRS web pageIndividual Taxpayer Identification Number (ITIN).

[KurtB]

Thanks so much for the quick reply @kfenwick1 ! 

[Sashamorning]

Based on option 2: if my spouse just became an LPR and just got an SSN, can I amend previous returns to claim the exemption?

[KrisD15]

To clarify, how did you file last year and why would you want to change? 

[Sashamorning]

My wife and I were married in 2021. I've filed MFS for the past three years because, honestly, every time I tried talking to any tax professional from TurboTax to H&R Block to the IRS, no one could seem to figure out how I should be filing. My wife is on disability in her country and doesn't have any earned income, so my understanding is that it isn't excludable even though she's paid taxes on income. We have a son that i haven't been able to claim as an exemption, and I'm assuming I still can't for previous years, but can now because they both have SSNs.

Now that they both have status, I'm trying to figure out if I should, once again, file MFS since they only got their visas two weeks ago and weren't in the States in TY 2024 or if I should file MFJ, and then if I should amend previous years. 

I have a lot of student loan interest that I haven't been able to claim. I think that, plus some other stuff, would make it advantageous to go MFJ in prior years, but I don't know, and I've spent three years trying to get answers from professionals with no success, so I'm still in DIY mode. 

[KrisD15]

You would have had (and still do) the option to file Married Filing Jointly or Married Filing Separately.

Since you were able to file as a resident for tax filing purposes, you both could have elected to have your spouse also treated as a resident for tax filing purposes. 

IRS Election to File Joint Return

How the 1040 will tax the disability your wife receives may be based on the tax treaty with the country paying the disability.  

Regardless, if the disability income needs to be reported and claimed, the tax paid on that income can be claimed as a Foreign Tax Credit. 

• Deductions and Credits
• Estimates and Other Taxes Paid
• Foreign Taxes    START

Dependents do not provide an exemption for tax year 2024, but they can make you eligible for, or give an increase to, certain credits. 

It is unclear as to which visa they have obtained, but I understand that those visas were issued in 2025.

If that is the case, you would still have the option of making the election for 2024. If you do make the election for 2024, you MUST file a Married Filing Jointly return for 2024 (you can switch in later years if you wish.)

You could even amend and make the election in a prior year. 

According to the IRS:

“You generally make this choice when you file your joint return. However, you can also make the choice by filing a joint amended return on Form 1040X, Amended U.S. Individual Income Tax Return within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.”

As you know, filing Married Filing Separately can limit deductions and credits, so making the election could prove beneficial to you.  

Once the election is made, it's made for good. Although you would again have the option of filing Married Filing Separately, your spouse would have the obligation of also filing. 

TurboTax has been updated to be much more helpful making the election for tax year 2024. The software will generate the statement needed to make the election. 

If you make the election for a prior year, you'll need to generate a statement on your own.  

Although the election, once made, must continue, a statement is needed every tax year until the spouse also becomes a resident for tax filing purposes, in which case including the statement is no longer required. 

According to the IRS:

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:

1. 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.
2. 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.)

This TurboTax link explains how to make the election. 

If your wife now has a social security number, you may be able to make the election and also e-file. 

[jmpratt343]

Re: Option 2

You state that option 2 requires an ITIN. This does not make sense in my mind, because obtaining an ITIN requires the nonresident spouse to file a form W-7. Form W-7 explicitly instructs you NOT to file a W-7 if the applicant is eligible for an SSN. Since a green card spouse will eventually obtain an SSN, filing the W-7 is out of the question, is it not?

[SusanY1]

You shouldn't apply for an ITIN when you expect to receive a Social Security number.   Instead, you should apply for (or wait for) that number.  If you are waiting for the number, you can file an extension which extends your due date to October 15, 2025.  

Alternately, you could file the return separately now and amend to joint later - but this is generally not recommended due to the lengthy processing time for amended returns.

Someone still waiting for the green card application to be processed (and not simply waiting for the SSN) is not presently eligible for the Social Security number, though, and can apply for an ITIN. 
@jmpratt343