I am a resident alien for tax purposes (H1B visa). My wife is on H4 dependent visa in the USA. She has been in USA for 189 days in 2019. 0 days in 2018 and 2017. She cannot apply for an SSN. She doesn't have an ITIN yet. We are trying to Married filing jointly.

Substantial presence test for my wife: 189 + (1/3)*(0) + (1/6)*(0) = 189

It looks like to me that she a resident alien based on a substantial presence test.

My questions:

  1. Can she be a resident alien without having SSN and ITIN?
  2. Can she be a resident alien without spending any amount of time in the USA in 2018 and 2017? It looks odd to me that she just came to USA and be considered as resident alien for tax purposes.
  3. If answers to above questions is yes, do we no longer need to worry about electing to choose her as resident alien?

1 Answer 1

  1. Yes, definitely.
  2. For 2019, yes.
  3. Well, her situation for 2019 is a little more complicated because it's her first year of residency. Since she is a resident by passing the Substantial Presence Test, her residency starting date is when she was first present in the US in 2019. So basically, she is dual-status for 2019 -- resident for the part of 2019 after she arrived, and non-resident for the part of 2019 before that.

You guys cannot use Nonresident Spouse Treated as Resident since neither of you was nonresident at the end of 2019. Rather, you can use Choosing Resident Alien Status. Both of those accomplish the same thing -- make both of you resident aliens for all of 2019 and allows (and requires) you to file jointly. Dual-status aliens cannot file jointly, so this choice is needed to file jointly.

So your options are:

  1. File as Married Filing Separately, with you being resident for the whole year and she being dual-status. She probably doesn't need to file a return unless she has foreign income from the part of the year after she arrived. She doesn't need to get an ITIN if she doesn't need to file a return. You can write "NRA" in the space for her SSN/ITIN on your tax return. Married Filing Separately will almost certainly result in more income tax overall than Married Filing Jointly. Or
  2. Use Choosing Resident Alien Status and file as Married Filing Jointly, with both of you being resident for the whole year. She would need to apply for an ITIN together with the tax filing. Making her resident for the whole year means her worldwide income the whole year needs to be reported on her US tax return, although she may be able to use the Foreign Earned Income Exclusion to exclude tax on her income from the part of the year before she arrived.
  • 2
    I see you have a lot of reputation -- which means you help a lot of people here. You don't seek any approval or personal benefit from that. You saved me from making a big mistake in our tax return and a lot of headaches/money afterward. Thank you so much for your time and effort. You have my respect, madam/sir.
    – sam
    Aug 9, 2020 at 19:31

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