Soilworker

Hi there, firstly I am totally new to these forums so a big howdy to everyone.

I am currently in the process of trying to immigrate to the USA. My wife is a USC and has been living and working in the UK with me for a number of years.
I had my final interview at the US Embassy last week and was refused my green card on the basis that we did not provide my wife's Tax returns for the last 3 years,even though it is her parents in New York who are providing the affidavit of support and financial details.

After visiting the IRS offices we have the 1040 and 2555-EZ to complete to hopefully fulfill the immigration obligations.

Some advice would be helpful please on what to put in the section for my name and SSN as my wife is choosing the ' married but filing separately' section for her tax returns. I'm not a 'non resident alien' yet as I am still living in the UK with her and don't have a social security number.Should we leave it blank or put N/A? Can't seem to find any clarification and don't want to delay immigration any further.

Thanks

civilservant

It doesn't matter, your wife IS your sponsor. If she does not qualify, she needs a joint-sponsor. The I-864 instructions did clearly state she still needed to supply all the relevant information.

You ARE a non-resident alien, and to include you on the tax return you should have applied for an ITIN (Individual Tax Identification number) which would take a few weeks to obtain. Now I believe that striking through the box would probably be sufficient, but I would await replies from other forum members before doing so.

I would suggest that you are more careful in understanding what the forms are asking you, and that you have fully read the instructions for those forms in future - as this is not the last immigration hurdle you will have to jump through.

theOAP

As civilservant said, you are an NRA (you're not resident in the US, and you are and have been an alien for US purposes).

If your wife is filing MFS (married filing separately) it's her tax return, not yours and hers. She can apply for an ITIN for you. She would need this if claiming you as a dependent on the 1040. As for applying for a US Visa, it may be wise to include you (via an ITIN) on the return, but I'm assuming you'll be getting a Social Security number once settled there (I'll leave this to those in the States to comment on, I've never gone through that process). She should put 'NRA' on the line that requests an ITIN for you if you do not have one.

Form 2555 applies solely for your wife (if MFS), and you do not enter into it in any way. It's her info only. If she has bank/building society accounts in the UK (both in her name only and/or joint accounts), be sure to include Schedule B, and be sure to answer the questions in Part III of that schedule. Also, be aware of FBAR requirements if the aggregate amount of her (and joint) accounts have an aggregate value of $10,000 in any year.

Speedwell

theOAP is correct. If filing married/separately, your wife will just put NRA on the Social Security line and not claim you as a dependent. She will wind up paying taxes at the higher rate.

If you wish to file jointly, with you as her dependent, which will result in tax savings and also serve as additional proof of an ongoing relationship, then you will need to apply for an ITIN. She will file the form as part of the tax package she submits (it must be a paper return and it will be sent, along with your correct and original ID, to the special address in Austin). Your income will still fall under the foreign income exclusion if it was under about 80K USD and you made none of it in the US. We did this and it went smoothly. If you need more information about applying for an ITIN, I can tell you exactly what my accountant did; there is no real reason for you to need an accountant just for the ITIN part unless your tax filing is complex.

DO NOT LISTEN to anyone (accountant or otherwise) who says your wife can file single. Unless she was actually single on December 31 of a tax year, she cannot file single. There happens to be an exception for a spouse in the US who has a dependent in the US besides you while you resided outside the US during the tax year (they could file single head of household under special IRS rules) but you do not qualify for this according to what you are saying.

Michael

If you have any questions with filing forms, you can call the IRS at the London embassy.

http://london.usembassy.gov/irs/

Pulaski

I wonder if the advice the embassy hands out for tax matters is any more reliable, accurate, and useful, than for matters of visas and immigration?

Michael

For basic tax advice, many on BE have claimed that the London Embassy IRS has been very helpful. Apparently that job is handled directly by the IRS.

Soilworker

Thanks very much for the advice guys.Thats cleared up my questions for now.

Steve_

You don't need an ITIN and I wouldn't get one (unless you have US-source income) because it will just confuse the issue when you get your SSN. As mentioned your wife just puts down that she's married to a non-resident alien on her 1040, married, filing separately.

If she hasn't spent any time in the US in the last three years then 2555-EZ is dead simple to fill out.

I was just wanted to add that it sounds as though the IRS office gave you the basics necessary for the immigration paperwork, your wife might have other filing obligations with the IRS if she's got investments outside the US that might need to be declared on form 3520 or 8621. Things like an ISA aren't considered tax shelters in the US.

Anyway all the instructions on how to do this are in IRS publication 54.

Steve_

One of my relatives was audited by them many years ago. They charged him for helping him fill in the forms!

JAJ

Her tax bill might still be zero, even if she files married/separate.


Filing married/joint:

a. does not necessarily result in tax savings;
b. would require the non-resident alien to include worldwide income for U.S. tax; and
c. is not necessary to show proof of an ongoing relationship (if someone asks why file married/separate, just tell the truth).

Although it's not common for those in the U.S. to file married/separate, there are a number of situations where it is done (including situations where a spouse is a non-resident alien). It does not imply any intention to separate or get divorced.

An ITIN is usually need to claim an exemption for a spouse in this situation. These can take time to get. If it's time critical, it may be possible to file the return now and leave out the spouse exemption. The amount of U.S. tax payable may be zero, regardless. If it's not, it may be possible to amend the return later on (within the normal deadline) to claim the spouse exemption once an ITIN or SSN is issued.


If you need an ITIN then as far as I am aware, you can apply for it at the IRS office at the U.S. Embassy in London. Sending away original ID documents to an office in the United States sounds like an especially bad idea.

Speedwell

Well, if that is what the higher married filing separate tax chart shows, yes.

But usually does.
Normally subject to foreign income exclusion rules. Not necessary, just extremely helpful.

Never said it did. It's the choice of the taxpayer and their spouse. There are, as I mentioned, even cases where a married US-resident taxpayer with a foreign spouse and other dependents may file single head of household.

You apply for the ITIN when you send in your taxes to the US. It does not delay your tax filing or change the due date. You send in the tax filing plus the ITIN request at the same time. You will write "applied for" in the box for the SSN.

You need to send in original documents anyway (as of the last tax year, certified copies are no longer acceptable). If you can get to London, fine. We didn't expect my husband to travel to London from western Tyrone in the middle of I-130 processing just to hand in a form to the IRS office, because it wasn't necessary. It so happened we sent his valid Irish passport with the tax filing; it came back before his visa was issued, but in case it did not, he could have traveled on his British passport. Since British citizens, additionally, can legally hold more than one passport, in the absence of other ID or if the British citizen doesn't wish to send in other originals (and they MUST be originals, unfortunately), they can obtain a second passport and send that in as ID for the ITIN.

Steve_

Given that the returns are for previous years anyway and from the sounds of it she's well under the foreign exclusion limit, you're all making this sound a lot more complicated than it needs to be, the IRS office appears to have told her to file three previous years returns and claim the exemption on 2555-EZ (which implies her tax situation is pretty simple otherwise they would have said 2555).

There's no point to the ITIN. They don't need the benefits of it. Makes more sense to wait until he's in the US and then get an SSN.

This is for immigration purposes, she can always file an adjustment later on if she feels the need, maybe to include any investments she has outside the US or whatever. What USCIS is looking for is that she's filed her tax returns, which is the legal requirement. From the sounds of it the parents are being used for the financial support, so even the numbers on the forms aren't that important. That's as complicated as it needs to be.

Like I said the instructions are in IRS publication 54.

Speedwell

That makes sense. I'm a little paranoid because of all the people who have told me that friends, forum posters (on other forums), and even tax professionals have told them to file single when they didn't qualify for the special exemption, and to simply correct their filing to married later. I paid a lot of money for an accountant who was used to working with foreign-spouse issues and I may have had a more complex filing than strictly necessary. Thanks for simplifying.

jeffreyhy

The embassy does not hand out tax advice. The IRS does. The anecdotal evidence is that the IRS office in London does a good job of it.

Nor does the embassy hand out visa and immigration advice - that's the Bureau of Consular Affairs and USCIS.

Regards, JEff