JimC

Hi all,

I just got my I130 receipt and my wife also received her EAD and AOS
ones. At work, before we applied for any AOS, I put down as Single on
the W-2 form because my wife was considered a non-immigrant alien (F1
status). Now that her status has changed to pending, do I need to
update the W-2 and file joint returns this year?

Thanks!

J Moreno

In article <[email protected] .com>,
JimC <[email protected]> wrote:

    > Hi all,
    >
    > I just got my I130 receipt and my wife also received her EAD and AOS
    > ones. At work, before we applied for any AOS, I put down as Single on
    > the W-2 form because my wife was considered a non-immigrant alien (F1
    > status). Now that her status has changed to pending, do I need to
    > update the W-2 and file joint returns this year?

If married and not separated from your wife (either the whole year
spent apart, or legally separated), you have two choices for filing:

Married Filing Jointly
Married Filing Separately

As long as this is your first year of marriage (i.e. you didn't file a
fraudulent return in previous years), there's no problem: simply file
your joint return, and update the W-2 at work. You'll probably get a
bigger tax refund than normal, but that shouldn't bother you under the
circumstances.

If you did file a fraudulent return for prior years, you should look
into getting that corrected. I know you can file an amended return,
but don't know anything about the consequences of doing so.

--
J. Moreno

meauxna

I think you mean W-4, which is how you tell your employer how much you would like witheld from your gross pay. Those docs are pretty flexible and I don't *think* there is a penalty for claiming single for part of this year.

But, you are married, and must file as married. The IRS has a different definition of 'resident' than USCIS; please proceed with caution.

JimC

Thanks for the replies!

It was non-resident listed under the option of being married on the
W-4. I originally wanted to change it to Married, but right under it
was a check box for non-resident spouses. It could probably mean two
things: my spouse is not living in the US or my spouse is a
non-resident alien in the US?

Rete

For the purpose of taxes, your spouse can be considered a resident even though status pending. She/He merely needs to include a note with the tax returns that for the purpose of filing she/he wishes to be considered a resident.

If you are married, you file married, either jointly or separately. Whichever is the most financially advantageous for you is the way you go. But you always mark married.

IMPO, the W-4 is only a form advising your company on what level you wish to withhold taxes, and for the purpose of CIS the main thing is how you file your 1040 not how you wish to withhold taxes from your paycheck.

J Moreno

In article <[email protected]. com>,
JimC <[email protected]> wrote:

    > Thanks for the replies!
    >
    > It was non-resident listed under the option of being married on the
    > W-4. I originally wanted to change it to Married, but right under it
    > was a check box for non-resident spouses. It could probably mean two
    > things: my spouse is not living in the US or my spouse is a
    > non-resident alien in the US?

I believe it means your spouse is not living in the US (and isn't a US
citizen).

As meauxna said, the IRS has a different definition of "resident" than
the IRS.

--
J. Moreno

jeffreyhy

Jim,

As others have explained, the IRS definition of a US resident, for tax purposes, is different from the the definition of a US resident under immigration law. And both of those aside, if you're married you're married, not single, no matter where your spouse resides.

I had my wife declared as a US resident for tax purposes while she was still in her home country waiting for my petition to be approved by the USCIS, before she had even applied for a visa to come to the USA. I filled out my W-4 accordingly and thereby reduced my withholding considerably.

Regards, JEff

hcj1440

There is some fine print on the W-4 form that says something like "If you're separated or your spouse is a nonresident alien, check the "single" box." I think this is confusing because it makes it sound like you *have* to check the single box. (Students on F-1s are, indeed, usually considered nonresident aliens.)

Anyhoo -- as others have opined, I don't think it really matters what you put on the W-4 form, that was just for your employer to know how much tax to withhold from your paycheck. You may want to update it for this year if you want to change your withholding.

If you were married as of Dec 31, 2005, you have to file as "married" this year. You can file married filing jointly or married filing separately. "Joint" works out better tax-wise for most people, but do it both ways and see which one you owe less tax/get a bigger refund on.

If your wife is a "nonresident alien" (take this quiz to find out: http://www.irs.gov/individuals/artic...33628,00.html), you can elect to treat her as a "resident alien" by filing a statement with the IRS. Unless she has a lot of foreign income that would become taxable if she were considered "resident", it will probably work out better for you to have her considered a "resident alien" than a "non-resident alien" and for you to file "married filing jointly".