rakhmetov567

Hello,
Love the forum and many thanks and much appreciation to all those who do so much to help those who post here.

My wife's AOS is coming up in a few weeks and we are wondering whether we can file our income taxes together (i.e., since as we understand she is no longer a student on an F-1 visa and subject to high Non-Res rates but rather an applicant for AOS)? We recall that on the EAD form it said something about this, but now we can't find it but think it said we have to file jointly if her application is marriage based.

We would like to file together for four reasons: 1) we're legitimately married and it's only logical; 2) the IRS has typically withheld over 10% of her income as a Non-Res, so we stand to get back much much more now and could really use the money; 3) filing together would provide us with one more piece of evidence of our marriage, and; 4) our incomes combined put us well over the 125% poverty line as a household (otherwise, my income falls just short, although we each put our income down to meet the I-864 requirement) and it would be great to have real-time, actual household income stated together in writing beside the past numbers we came up with when we combined them.

So can we file together as if she is no longer a Non-Res (as in the 1040NR she used to use) or will we get in hot water with the IRS?

She filed for AOS in November 2007.

Noorah101

I'm not sure I follow your question. If you are married (which you are, if you're filing AOS), then you MUST check the married box on the tax return. Whether you file "married single" or "married jointly" is just a matter of whichever way is beneficial to your tax return...usually "married jointly" gives you a better return.

Rene

ian-mstm

I agree with Rene... you *must* file as married (either "married filing jointly" or "married filing separately")... but you must file as "married". That said, you should have been filing "married" every year since you were married. If you were married and were *not* filing as married, you might be in serious trouble with the IRS and, perhaps by extension, USCIS.

Ian

Rete

Is this the first year you are eligible to file as a married couple? If so, then yes. You must file "married" however, as to married, single or married, joint would depend on this category offers you the lower tax bracket. If it is not the first year you were eligible to file together, then before the interview amend all your previous applicable form filings with the IRS to reflect "married" as your status.

rakhmetov567

Since we've been married we've always filed "married single" or "married but filing separately" (where the forms even ask you to indicate it! the 1040ez doesn't unless you're filing jointly but her 1040nr asked her to indicate it, which she did as "married filing as non-res"). Now we want to file "married joint" or "married and filing together." Previously she had been in a really high tax bracket on her F-1 visa, but she's no longer in that category as far as we can tell. With her AOS, are we able to file jointly?

Sorry for any confusion.

ian-mstm

Filing married single or married jointly is *not* related to your immigration status. In other words, you have *always* had the choice whether to file married single or married jointly... it is entirely your decision. If filing married jointly is to your benefit, you can file that way. If it is not to your benefit, file the other way.

Ian

Rete

She was also able to file joint "resident" once you were married and AOS applied for.

rakhmetov567

Thanks for all your help. This is then the first year we can do that and we'll be sure to do so.