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I'm on H1B visa and my spouse is on H4 visa. We both came to US on Sep 2022 & We have been in USA for 113 days in 2022 and 0 days in 2021 & 2020. Can we file Married filing jointly as Resident Alien, with 6013(g) or 6013(h) election form and apply ITIN for my Spouse(as completed 180 days in US)? or only option is to File Married filing Separately(Resident or Non Res) for myself and apply ITIN next Year for my spouse next year. Appreciate your help.

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You can do that under the IRC 7701(b)(4) (first year election) - if you qualify.

Beware that you'll both be taxed on your worldwide income for the whole year under the both first year election and the Sec. 6013 election. Read more here. Just the first year election allows you to file a dual status return, but as MFS.

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  • although they will be able to use the Foreign Earned Income Exclusion and/or the Foreign Tax Credit on foreign income for the part of the year before they came to the US
    – user102008
    Commented Mar 15, 2023 at 16:26
  • Right. FEIE is only for, well, earned income, so if there's a lot of investment income and such FTC may be better.
    – littleadv
    Commented Mar 15, 2023 at 16:53

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