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If recently married with both spouses have been in the US for 5 years and both work full time in the US as a H1B and H4, can we file as residents married filing separately? Both have a social security number and have been filing as single resident and single non resident prior to marriage.

Filing as married separately will be a $50k larger tax refund because we are high income worker. I read that somewhere that we are supposed to file as married filing jointly the first year then if we make the election then we can file as married filing separately. Just not sure if we fall into this case or that we qualify for residency because we have been in the US for 5 years.

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    Yes, but... why would you?
    – littleadv
    Feb 25, 2023 at 22:18
  • Because both made a lot of money and filing separately equates to $50k difference in tax refund.
    – Dat Lat
    Feb 25, 2023 at 22:29
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    Really? Why? unless there's a huge mortgage that you can both split, I don't see how that's possible. Are you sure you're not checking 2*single comparing to MFJ?
    – littleadv
    Feb 25, 2023 at 23:56
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    Can you be a little more specific about dates? If marriage (and spouse's H-4 eligibility) occurred in second half of 2022, and their 5 exempt years for F-1 included 2022, spouse is tax nonresident for 2022 so they still need 1040NR thus must file MFS and thus so must you -- unless you (jointly) elect to have them treated as resident (due to the marriage) and if so yes for the first year (the year of the election) you must file MFJ. Feb 26, 2023 at 4:30
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    If your incomes about equal, then MFJ and MFS should give about equal taxes (though MFS still misses out on some deductions and credits), no matter how high or low the income is. If your incomes are very different, then MFJ should be much better than MFS (again, this is true no matter how high or low the income is). There's almost no situation in which MFS would be better than MFJ. Can you provide some approximate numbers showing how you think MFS can be better in your case?
    – user102008
    Feb 27, 2023 at 2:38

1 Answer 1

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If you're married and are both considered US tax residents for the whole year, you can either file as "Married filing jointly" (MFJ) or "Married filing separately" (MFS). There's no waiting period. Neither of you can file as "Single" or "Head of household" (HoH).

It is highly unlikely that filing MFS would be beneficial over MFJ, but there may potentially be some edge cases where that would hold. Without knowing your situation it's impossible to tell. However filing MFS saving 50K in taxes over MFJ for a couple of high earners is extremely extremely unlikely and is highly unusual. Unless you're in some extraordinary situation, this doesn't seem right.

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