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I got married June 2019 to a US citizen, and recently filed for adjustment of status. We live together presently with her 9 year old daughter, and I can't work because I've yet to receive my EAD.

When my wife is filing her tax return, can she file as head of household?

  • Please add the country and, if relevant, the jurisdiction since each place has its own tax laws. For example, I’m not sure that your wife’s nationality matters all that much when filing Australian taxes if she’s a resident of Australia for tax purposes - but if you weren’t talking about Australia, that’s moot. – Lawrence Dec 22 '19 at 14:45
  • When did you arrive in the US? – user102008 Dec 22 '19 at 20:35
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Assuming you stayed in the US the entire time after you entered, you meet the Substantial Presence Test for 2019, so you are a resident alien (though you might be a dual-status alien for 2019 (resident only since entry) if you arrived in the middle of the year).

If you are dual-status, you can use Choosing Resident Alien Status to be treated as a resident for the whole year and file as Married Filing Jointly with your wife. So no matter if you are dual-status or resident for the whole year, you guys can file as Married Filing Jointly, and claim your step-daughter as dependent. Assuming you don't have an SSN, you would apply for an ITIN together with your tax return. (Or, if you don't want to apply for an ITIN, you can wait until you get an SSN to file tax returns, applying for an extension to taxes if necessary; or file separately first and then amend it to jointly once you have an SSN.)

Or, you guys can file separately. You would file as Married Filing Separately (which might mean that you don't have to file if you don't have any income), and your wife would file as Married Filing Separately, claiming her daughter. You do not need to apply for an SSN in this case, as your wife can write "NRA" where it asks for your SSN/ITIN. It is almost always more beneficial tax-wise to file as Married Filing Jointly than Married Filing Separately.

As to whether you can file Married Filing Separately and she file Head of Household, claiming her daughter, that is more complicated. She can only file as Head of Household if she is "considered unmarried". Although she is married, she can still be considered unmarried if you guys lived apart for the last 6 months of the year (she didn't) or she is married to a nonresident alien for any part of the year. The latter would be true if you are a dual-status alien for the year (i.e. if you first arrived in the middle of the year).

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As you are married, yes, she should be able to file as Married with you and her daughter as her two dependents, if you meet the substantial presence test.

As part of the tax return, she would be asking for you to get an ITIN, which will later be substituted by a SSN after you get your EAD.

Check if your time in the USA is long enough for the substantial presence. If you live out of the USA, you would not be part of her tax return yet.

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    From the 1040 instructions: “if you were a nonresident alien or a dual-status alien and were married to a U.S. citizen or resident alien at the end of 2018, you can elect to be treated as a resident alien and file a joint return. See Pub. 519 for details.” Most likely this would be advantageous. – prl Dec 22 '19 at 7:14
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    A spouse can never be a dependent. – prl Dec 22 '19 at 7:18
  • @prl are you sure? It's been a couple of decades, but I'm pretty sure I claimed my wife as a dependent when she was home with the kids. – RonJohn Dec 22 '19 at 20:55
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    @Ron, you probably filed a joint return. On a joint return, the spouse isn’t a dependent, he/she is an equal. If you file married-separately, you can’t put your spouse as a dependent. Head-of-household (possible if spouse is a nonresident alien) also doesn’t allow your spouse as a dependent, as far as I can tell. – prl Dec 22 '19 at 21:03

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