Can a Nonresident Alien File Jointly?

U.S. tax obligations can be complex, especially for individuals with international connections. While joint filing offers convenience and potential benefits for married U.S. citizens or resident aliens, different rules apply when one spouse is a nonresident alien. Understanding your U.S. tax status is the first step in determining filing options, as it dictates how income is taxed and which forms are used.

Understanding Tax Status and Joint Filing Eligibility

For U.S. tax purposes, individuals are classified as either a “nonresident alien” (NRA) or a “resident alien” (RA) based on specific criteria. A person is a resident alien if they meet the Green Card Test or the Substantial Presence Test. The Green Card Test is met if an individual is a lawful permanent resident of the U.S. at any time during the calendar year.

The Substantial Presence Test requires physical presence in the U.S. for at least 31 days in the current year and 183 days over a three-year period (current year, plus two preceding years). The 183-day calculation includes all days in the current year, one-third of days in the first preceding year, and one-sixth of days in the second preceding year. Individuals not meeting these tests are nonresident aliens.

Joint tax filing in the U.S. is for married couples where both spouses are U.S. citizens or resident aliens. If one spouse is a nonresident alien, the couple cannot file jointly. However, an election allows a nonresident alien spouse to be treated as a U.S. resident for tax purposes, enabling joint filing.

The Election to Treat a Nonresident Alien as a Resident

This election allows a nonresident alien spouse to be treated as a resident alien for U.S. income tax purposes, enabling joint filing. It is governed by Internal Revenue Code Section 6013. Section 6013(g) applies when one spouse is a U.S. citizen or resident alien and the other is a nonresident alien at year-end. Section 6013(h) applies if an individual is a nonresident alien at the beginning of the tax year but becomes a U.S. resident by year-end, and is married to a U.S. citizen or resident alien.

To make this election, both spouses must sign and attach a statement to their joint income tax return for the first year. This statement must declare that one spouse was a nonresident alien and the other a U.S. citizen or resident alien on the last day of the tax year. It must also state that both spouses choose to be treated as U.S. residents for the entire tax year. The statement should provide the name, address, and taxpayer identification number for each spouse.

Once made, this election applies to all subsequent tax years unless terminated or revoked. The couple will continue to file jointly as U.S. residents in future years, assuming eligibility.

Tax Implications of the Election

Electing to treat a nonresident alien spouse as a U.S. resident carries tax implications, especially regarding income subject to U.S. taxation. The electing nonresident alien spouse becomes subject to U.S. taxation on their worldwide income for the entire tax year. This means income from both U.S. and foreign sources must be reported and taxed by the U.S. government, unlike nonresident aliens who are typically taxed only on U.S.-source income.

Foreign tax credits may be available for foreign-sourced income to mitigate double taxation. A foreign tax credit offsets U.S. income tax liability by the amount of income tax paid to a foreign country. Individuals use Form 1116, Foreign Tax Credit, to claim this credit. The electing spouse is treated as a U.S. resident for all U.S. income tax purposes, including eligibility for deductions and credits. However, this election can preclude claiming certain benefits under income tax treaties.

The election can be terminated or revoked. Either spouse can revoke it, or it terminates automatically due to events like death, legal separation, or divorce. Once terminated, individuals are ineligible to make the same election in any subsequent tax year.

Obtaining Necessary Identification Numbers

Both spouses need a valid U.S. taxpayer identification number (TIN) to file a joint tax return, whether a U.S. citizen, resident alien, or electing nonresident alien. The two main TIN types are a Social Security Number (SSN) and an Individual Taxpayer Identification Number (ITIN).

An SSN is issued to U.S. citizens and those authorized to work in the U.S. If the nonresident alien spouse is not eligible for an SSN, an ITIN is required. An ITIN is a nine-digit tax processing number issued by the IRS for individuals needing a U.S. TIN but ineligible for an SSN.

To apply for an ITIN, the nonresident alien spouse must complete Form W-7, Application for IRS Individual Taxpayer Identification Number. This form requires:
Name
Mailing address
Foreign address
Date of birth
Country of citizenship
U.S. visa information (if applicable)

The application must include original supporting documentation or certified copies to prove identity and foreign status. A valid passport is a preferred document as it can satisfy both requirements. Other acceptable documents include national identification cards, foreign driver’s licenses, and civil birth certificates.

Form W-7 can be submitted by mail to the IRS ITIN Operation in Austin, Texas, through a Certifying Acceptance Agent (CAA), or by appointment at an IRS Taxpayer Assistance Center (TAC). Applying through a CAA or TAC may allow original documents to be verified and returned immediately. Obtaining an ITIN can take several weeks or months, ranging from 7 to 14 weeks, and longer during peak tax season. The ITIN application and identification documents are submitted with the first joint tax return.

Preparing and Submitting the Joint Return

After the election is made and taxpayer identification numbers are secured, the couple can prepare their U.S. income tax return. Instead of Form 1040-NR, they will file Form 1040 or Form 1040-SR, reflecting their elected U.S. resident status.

The election statement must be attached to Form 1040 when submitted, informing the IRS of their choice to be taxed as U.S. residents. The completed tax return, with any required schedules and forms, can be submitted to the IRS. E-filing is an option, particularly through tax software or a tax professional, but mailing paper forms to the designated IRS service center is also available.

The IRS will process the return, which can take several weeks or longer during busy filing periods. Couples should be prepared for correspondence from the IRS. Maintaining accurate records of all submitted documents, including the election statement and ITIN application materials, is advisable.