My daughter recently married a US Citizen. She lives in Canada but visits and lives there with him within her allowed time frame on a visitor visa and then returns to Canada as they wait for their spousal visa to be processed. She therefore travels back and forward regularly paying attention to time frames so that she can be in the US legally.

My question therefore is, when her husband files his tax return:

How does he file? He is married and she does depend on him when she visits for a month at a time etc as she is obviously not working. Does he file as having his wife as a dependent (even though she does not have her spousal visa yet).

I would appreciate constructive feedback on this as the last thing we want to happen is an incorrect tax return to be filed.

Many Thanks in anticipation.

I am not a tax expert but you want to make sure that your daughter does not claim at any point to be living in the US. Tax dependents live with someone. She is only visiting him.

He has to file as married and I believe he can file as married filing jointly but will have to declare her foreign income but that can be offset with foreign income taxes paid. If that is possible and she doesn't earn income, that is a large tax savings.

However, you really need to check with a tax accountant to be certain.

He is legally married and so his ONLY options to file are as Married Filing Jointly or Married Filing Separately.

The simple version is that if they may qualify to file as married filing jointly (MFJ), and if they do they will have to make a statement to the IRS to choose that option, and your daughter's worldwide income (i.e. her wages in Canada, any interest she receives on a bank account, all of it) will be included in their tax return. They might qualify for foreign tax credits, not sure. There are consequences on future returns if they do it this way. Search for "nonresident spouse treated as a resident" at irs.gov.

Obviously you need to check all this with a proper tax person.
Obviously you need to check all this with a proper tax person.
And if he files as married filing separately (MFS) he only has to include his income. It is possible to claim a nonresident spouse as an exemption, subject to certain conditions, but overall the tax rates for MFS are not very favourable at all.

Their individual circumstances will decided which is best for them. For example if she doesn't have much income then maybe the additional tax they'd pay by including her income on a joint return with lower tax rates would be better than him having lower income on a separate return.

By the way, to claim your daughter on his return in any way, she must have a tax identification number (ITIN). I believe they can apply for the ITIN at the same time as filing the return, but I'm not sure, it's something you'd have to look into before it gets too late into the tax season.

Thanks everyone for your replies.

Happy to say that they have been to see a Tax specialist who has advised them appropriately.

And was the advice similar to what they got here?