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  • #2
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    • #3
      maximus, so on your J1 internship are you saying that your employer does not give you a 1099 form or a w-2 form? If they dont give you a tax form & you want to file joint you need to apply for a TIN. You can call the IRS & speak to a tax specialist to find out if the wages you earned under your J visa need to be claimed or not. This by far is your safest bet.

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      • #4
        I would be very carefull in filing non-resident then you're married to a USC and especially if some sort of adjustment for your status to U.S. resident is on its way. In my opinion; unless you're planing to permanently leave the U.S. soon, you should defininitly not do that. But consult a good tax attorney who has also some background in immigration, the bigger investment firms have such people often times.

        Any alien (LPR or any otherwise) residing more than 180 days in the U.S. is obligated to file taxes. If you have no ss#, you can apply for a TIN as you were advised earlier. This is going to be one of the first questions that you will be asked all the way to naturalization and any no's will haunt you...

        It's no joke than they say that only two things are certain; taxes and death!

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        • #5
          file your taxes however you want and do not worry about it getting back to immigration officials. irs is NOT allowed to share your tax filing info with any other agencies. apply for your TIN number, and have your wife file for head of household together with you jointly.

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          • #6
            no, i misunderstood, file with your ssn #

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            • #7
              Originally posted by Julie:

              no, i misunderstood, file with your ssn #
              www.taxslayer.com (free website) even puts your return on the correct form for you to print & mail, or you can pay them on line to efile it for you

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              • #8
                You will be unable to show good moral character if your wife is sponsoring your status for U.S. residency and you're still filing taxes (or not filing at all) as a non-resident. In fact if you ever did that since being married, I would strongly urge you to file these retroactively.

                Talk to any tax professional and you'll see what an important subject that is, not to mention how much it can endanger your adjustment of status. If you want to remain in J1 status and eventually permanently leave the U.S., then by all means, don't file. But if you're ever thinking of living here or even just visting the U.S. in the future, not filing taxes will ruin your future!

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                • #9
                  Maximus 76

                  I am not a tax specialist, but we have gone through a similar situation a few years ago. We consulted with immigration and tax attorneys, and here is what we got from them. However, it is always best to seek professional advice that is tailored to your own situation, but the following may prepare you to ask some relevant questions.

                  Always (try to) stay in legal status and file your taxes. When (if) you try to adjust your status based on your marriage to a USC, there is a form in the I130/I485 package where they ask whether and when you (the applicant) have ever filed your federal tax (be truthful in answering), and they will ask to see the tax returns during the AOS interview.

                  As to how to file your tax, consult the IRS Publication 519: US Tax Guide for Aliens at www.trs.gov. There are two basic paths foreword, each with its advantages and disadvantages.

                  1) Your USC wife file 1040 married and filed separately, and you file 1040NR since you are a J-1 in legal status. By doing so, you can claim preferred treatment based on tax treaty (I believe you have to include the country specific tax statement, available from the publication, in your return). The downside is your wife cannot claim you as a dependent. Also, you won't have a joint return to show during your subsequent immigration interview (although she should still list you as spouse in her separate 1040 so it should be fine).

                  2) You and your wife can file 1040 joint return. According to the "Nonresident spouse treated as a resident" section of Pub. 519:

                  -Quote- "If, at the end of your tax year, you are married and one spouse is a US citizen or a resident alien and the other spouse is a nonresident alien, you can choose to treat the nonresident spouse as a US resident" –unquote-...

                  for tax purpose ONLY.
                  You make this choice by attaching a signed declaration statement as instructed in the publication. Filing joint return will allow you to claim a larger deduction. Plus, the statement and return are solid documents for marriage based immigration. The downside is your world-wide income during the tax year will be taxable (no preferred tax treaty treatment) so this may end up costing you more.

                  So you'll need to calculate which is more favorable financially, and whether a joint return is more desirable for future immigration use. Good luck.

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                  • #10
                    Maximus,

                    OK, here was the situation, and it happened to work out perfectly for us.

                    My wife (didn't know her then) came to the US for her MBA in 1999 on a F-1 visa. She had substantial income that year before she quit her job abroad. Since she was not a resident alien, she filed 1040NR that year. Her previous income was not "effectively associated with work in the US" (or some such jargon IRS uses). So the only income she needed to file was investment interests and gains as well as the scholarship she received.

                    We then met and got married in 2000. Since she was a student the entire year, she had no income during that tax year AND she incurred education expenses. Because of these facts, we filed 1040 jointly in 2000 by declaring that she (the non-resident alien) is married to me (the USC) in that tax year and we choose to treat her as a resident alien for tax purpose. By doing so, we could claim the larger exemption for married couples as well as education credit for her eligible university expenses.

                    We filed her AOS paper in Nov. 2000. In answering the if and when parts of her tax, we put in yes she did file tax in 1999 using form 1040NR. She got her EAD and work authorized SS card in Feb. 2001. She graduated in May 2001 and started to work in June 2001. We continued to file 1040 jointly without the need to include the declaration statement (once was enough according to the IRS publication). We got our AOS interview in Feb, 2002. During the interview, the immigration officer asked to see our tax forms. He commented that it is GREAT that she filed her tax even when she was a student. and said that he didn't know that a declaration had to be made for her to file jointly. I did have the IRS publication with the relevant regulation with me, but he didn't ask to see it. My wife got her conditional GC approval, and we've just filed our I-751 jointly in Dec. 2003 to remove her condition.

                    So from what I experienced during the interview, they do want to see you file your tax (i.e. follow the law). 1040NR would, in my view, be fine since 1) the choice to be treated as a resident alien for tax purpose is yours to make, it is NOT mandated by the law. You, in fact, are a non-resident alien until you get your GC. 2) By filing 1040 married but filed separately, your wife will necessarily put your name and SS# next to the filing status check mark. So you have declared to the IRS that you two are married (just not CHOOSING to be treated as a resident for tax purpose). Good luck.

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                    • #11


                      [This message was edited by on February 07, 2004 at 11:57 PM.]

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                      • #12
                        Maximus,

                        Irritated2 is correct that the people you deal with at H&R Block typically can only handle routine filings. From what I heard, a lot of them only took a few days of training, and depend heavily on computerized programs that do not deal with foreign national taxation. I live in good ole Tennessee (not a center of international sophistication), and we had to travel down to Atlanta to consult with immigration and tax attorneys (not your everyday accountants). I am surprised that you could not find an International Tax Attorney in Milwaukee (consultation fee should not be too high, ~100 to 150 USD). Maybe you can try Madison since there are lots of foreign national professionals associated with the flagship university there. The important thing though is FILE your taxes, both FEDERAL and STATE. You have until April 15, and if you did file the wrong Federal return, you can always fix it later (up to several years later!!) using Form 1040X. Don't know about state tax since Tennessee does not have an income tax, just investment tax (smile). Realize that what USCIS really want you to do is to demonstrate your propensity in following the law by paying tax, and the IRS just care about you paying the (estimated) amount of tax you owe.

                        I'll like to comment on several things in your last post:

                        1) Lets say that your wife files Form 1040 by herself. Under the Filing Status section, she will check the [Married filing separately] box. The following instruction is printed next to the box "Enter spouse's SSN above and full name here". So you see, your wife has no choice but to declare you even if she files separately.

                        2) We are talking about FEDERAL tax here. The regulations under consideration are federal ones, and are not state dependent. Your state (WI) will have its own tax form, and I doubt that a state will distinguish between resident and non-resident aliens.

                        3) It is true that HOW you file can have consequences on you tax refund (or money owed). Just remember that state tax is usually lower than federal tax. You will have to pay state tax on your and your wife's income (WI did not enter into any agreement with other countries). That means regardless of what Federal tax forms you file, you'll have to cough up a portion of YOUR income. The following is how state tax may affect your federal tax.

                        4) If you file the federal tax 1040 jointly, both of you will pay a percentage of your total income. Your wife would have paid a certain amount already through withholding while you did not. The amount depends on what tax bracket you are in (a higher combined income will likely push you to a higher bracket/percentile). You will be entitled to take EITHER a standard exemption (7,850 USD last year) or itemized deduction, whichever is higher. It is in this deduction section that you can claim state tax relief. But this is not useful if your total itemized deduction is pitiful like mine.

                        5) Married filing separately will only include your wife's income, with standard exemption of 4,700 USD last year. I DO NOT KNOW if she can include ALL the state tax in her itemized deduction (but she might since you will not be claiming that using 1040NR?). You, filing 1040NR, will pay whatever's not covered by the tax treaty.

                        So that's why I wrote in the first post that you need to calculate and compare the 2 options. Go to www.IRS.gov and download Forms 1040 and 1040NR with instructions. Also get your state income tax form. Better yet, find a copy of TurboTax since it will automatically calculate and decide standard exemption vs. itemized deduction for you (It does state tax too). E-filing is not advisable for now since you would not be able to put your signatures on the forms You'll have to do 1040NR manually. So get a pizza, sit down with your wife, go through the forms and compare. Decide on which way you want to go, and you can fill and file yourselves if you are careful and organized. Get to it even though you still have lots of time. Good luck.

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