Hello,

I live in US on H1 visa, working in one the tech company in San Jose. I am getting married on 23rd December. My spouse is in India, she works there and has never been to US. I would like to know if I can file my tax as "married filling joinlty" even though she doesn't enter US before 31st December 2013.
Also, will it be an advantageous (more tax return) if she enter US before December 2013.

Thanks,
Rocky

#1; It depends; as long as you are a US resident for tax purposes UNDER the IRS rule, then you can file your return as MFJ or MFS as long as you elect to treat your spouse in India as a resident for tax purposes. In this case(if you file your return as MFJ with your spouse in India, then your spouse MUST report her income that she earns in India to the IRS/your state). OR as she has no taxable income that she earns in US, she doesn’t need to file her return, then you may file your US return as MFS.



#2; As your non-citizen spouse is legally married to you, you can file as married, I mean, either MFJ or MFS as said, if you were married as of Dec. 31 of the year for which you pay taxes. However, UNLESS you file your return as MFJ, I do not think it is advantageous if she enters US before Dec 31 , 2013; however, as long as you file your return as MFJ, then, you might arrange your wedding date(Dec 2013 vs Jan 2014) to reduce the tax bite; couple who marry ordinarily move from two individual returns where incomes are taxed using the rate schedule for single individuals to one return where the combined incomes are taxed using the joint rate schedule. The less progressive joint rate schedule results in a lower tax when one spouse has most of the income because more of that spouse’s income is taxed at lower tax rate. but when a higher income husband and wife have approximately equal incomes, their combined incomes are taxed at higher rate on one joint return. Even though the joint rate schedule is the least progressive, the combined tax for higher income couplers is greater because higher tax brackets in the joint rate schedule are less than twice as wide as the same brackets for single taxpayer..

Thanks a lot for your detailed and prompt reply, it is very helpful.

I had a similar situation. I am on H1 Visa so am a Resident alient for Tax purpose otherwise i am a non-resident alient in general because i am in US just for one year now. To be considered as Resident alien the following condition should be met.
A nonresident alien is a non-U.S. citizen who doesn't pass the green card test or the substantial presence test. If a non-citizen currently has a green card or has had a green card in the past calender year, he or she would pass the green card test and would be classified as a resident alien. If the individual has resided in the U.S. for more than 31 days in the current year and has resided in the U.S. for more than 183 days over a three-year period, including the current year, he or she would pass the substantial presence test and also be classified as a resident alien.

I filed my tax return as "Married File Jointly" though my spouse was in india for the complete year 2015, still i wanted her to be treated as resident alien for tax purpose as she is not working and she doesn't have any income source. So that's possible and definitely there is some tax benefits i got.. Hope this helps.

correct; as a US resident for tax purposes, you are treaed just like a US resident and may file your US return as MFJ or MFS; in your case, sicn eyour spouse in INDIA has no US source income may file your US return as a MFJ in this case you need to report your spouse's foreign income that she earns in INDIA on your US return. If you d onot wanna reprot your spouse incoem in INDIA you may file your US return as MFS.

I got married in december 2017 and my wife won?t be able to get to US till June 2018. However when I will file my 2017 taxes in Feb 2018, how can I file as MFJ since I can?t get the ITIN issued for her till June. Please advise

I live in US on H1 visa, working in one the tech company in San Jose. I am getting married on 23rd December. My spouse is in India, she works there and has never been to US. I would like to know if I can file my tax as "married filling joinlty" =======>I should say it depends; ASLONGAS you are a US resident FOR TAX PURPOSES, then you and your spouse can choose to have your spouse treated as a US resident for all US federal/ your home state income tax purposes. So in this case, yes you may file your return as MFJ and can also claim your spouse on your return even if she lives in INDIA and have never been in the states.

even though she doesn't enter US before 31st December 2013.
Also, will it be an advantageous (more tax return) if she enter US before December 2013.===>As said it does not matter whther or not your spouse in INDIA enters US before December 2013 ;aslongas you are regarded as a US resident FRO TAX PURPOSES, then you may file your return as MFJ;REMEMBER; once you file your US return as MFJ, then you nd your spouse MUST report both US source and world wide income , I mean, not only your income in US but even your spouse?s income that she earns in INDIA MUST be reported on your return.

I live in US on H1 visa, working in one the tech company in San Jose. I am getting married on 23rd December. My spouse is in India, she works there and has never been to US. I would like to know if I can file my tax as "married filling joinlty" =======>I should say it depends; ASLONGAS you are a US resident FOR TAX PURPOSES, then you and your spouse can choose to have your spouse treated as a US resident for all US federal/ your home state income tax purposes. So in this case, yes you may file your return as MFJ and can also claim your spouse on your return even if she lives in INDIA and have never been in the states.

even though she doesn't enter US before 31st December 2013.
Also, will it be an advantageous (more tax return) if she enter US before December 2013.===>As said it does not matter whther or not your spouse in INDIA enters US before December 2013 ;aslongas you are regarded as a US resident FRO TAX PURPOSES, then you may file your return as MFJ;REMEMBER; once you file your US return as MFJ, then you nd your spouse MUST report both US source and world wide income , I mean, not only your income in US but even your spouse?s income that she earns in INDIA MUST be reported on your return.

Thanks a lot for the detailed clarification. But as per the filing process, IRS asks for ITIN of spouse. How can I apply for ITIN since the form also asks for entry to US date ?

you need to complete Form W-7 only if the Social Security Administration notifies you that a SSN cannot be issued. By law, an alien individual cannot have both an ITIN and a SSN. You should complete Form W-7 as soon as you are ready to file your federal income tax return, since you need to attach the return to your application. You can call the IRS toll-free at 1-800-829-1040 if you are in the United States. If you are outside the United States, call 267-941-1000 (not a toll-free number) for information and help in completing your Form W-7.
https://www.irs.gov/pub/irs-pdf/fw7.pdf
https://www.irs.gov/forms-pubs/about-form-w7



As you know, ITINs are for federal tax reporting only, and are not intended to serve any other purpose. IRS issues ITINs to help individuals comply with the U.S. tax laws, and to provide a means to efficiently process and account for tax returns and payments for those not eligible for Social Security Numbers. An ITIN does not: authorize work in the U.S. Provide eligibility for Social Security benefits;qualify a dependent for Earned Income Tax Credit Purposes.