Can I File Jointly With My Foreign Spouse?

Filing taxes as a married couple can offer financial benefits, but it becomes more complex when one spouse is a foreign national. U.S. tax laws allow certain couples to file jointly, which may lead to lower tax rates and higher deductions. However, eligibility depends on residency status and income reporting requirements.

Determining If You Can File Jointly

Married couples can file a joint tax return, but when one spouse is a foreign national, eligibility depends on specific tax rules. The IRS allows U.S. citizens and resident aliens to file jointly with a nonresident spouse if they elect to treat the foreign spouse as a U.S. tax resident for the entire year under Internal Revenue Code Section 6013(g). This election requires both spouses to agree in writing and subjects the foreign spouse to U.S. taxation on their worldwide income.

This option can be beneficial if the foreign spouse has little or no income, as it allows the couple to take advantage of lower tax brackets and deductions. However, it also means all foreign income must be reported, which could increase overall tax liability. Once made, the election remains in effect unless revoked under specific IRS conditions.

If the foreign spouse has significant income, filing separately may be preferable to avoid higher U.S. taxes. The decision should be based on total income, deductions, and potential foreign tax credits. Consulting a tax professional can help determine the best approach.

Residency Requirements

A foreign spouse’s ability to file jointly depends on their U.S. tax residency status, determined by either the green card test or the substantial presence test.

Under the green card test, a foreign national is a U.S. tax resident if they have been granted lawful permanent resident status by U.S. Citizenship and Immigration Services (USCIS). This status remains in effect unless formally abandoned or revoked.

For those without a green card, the substantial presence test may establish tax residency. This test considers the number of days a foreign individual has been physically present in the U.S. over a three-year period. A person qualifies as a U.S. tax resident if they have spent at least 31 days in the U.S. during the current tax year and a total of 183 days over the past three years, using a weighted formula: all days in the current year count fully, one-third of the days from the prior year count, and one-sixth of the days from two years ago are included.

Certain visa holders, such as those on F-1 student or diplomatic visas, may be exempt from the substantial presence test. Additionally, individuals who can demonstrate a closer connection to a foreign country and maintain a tax home there may claim an exemption from U.S. tax residency by filing Form 8840.

Obtaining a Spouse Identification Number

A foreign spouse who does not qualify for a Social Security Number (SSN) must obtain an Individual Taxpayer Identification Number (ITIN) to be included on a joint tax return. Without this number, the IRS will not accept the return, which could delay processing.

To apply for an ITIN, the foreign spouse must submit Form W-7, “Application for IRS Individual Taxpayer Identification Number,” along with the couple’s tax return. This form requires supporting documentation to verify identity and foreign status, such as a passport or national identification card. If a passport is used, it must be either the original document or a certified copy issued by the issuing agency. Some applicants may need to provide additional identification if their passport lacks a U.S. entry stamp.

ITIN applications can be submitted by mail, in person at an IRS Taxpayer Assistance Center, or through an IRS-authorized Certifying Acceptance Agent (CAA). Using a CAA can simplify the process, as they are authorized to review and certify documents, reducing the risk of rejection. Processing times typically range from six to eight weeks, but errors or missing information can cause delays.

Income Disclosure Requirements

When filing jointly, both spouses must report all worldwide income, including wages, self-employment earnings, rental income, dividends, and interest, regardless of where it was earned or whether it was taxed in another country.

Foreign financial assets may also trigger additional reporting obligations. If foreign accounts exceed $10,000 at any point during the year, the Foreign Bank Account Report (FBAR) must be filed with the Financial Crimes Enforcement Network (FinCEN) using Form 114. Additionally, under the Foreign Account Tax Compliance Act (FATCA), taxpayers with foreign assets exceeding $200,000 for married couples living abroad or $100,000 for those residing in the U.S. must file Form 8938 with their tax return. Failure to comply with these reporting requirements can result in penalties exceeding $10,000 per violation.

Key Filing Steps

Once eligibility is confirmed and an ITIN is obtained for the foreign spouse, the next step is completing and submitting the joint tax return. The correct filing status, “Married Filing Jointly,” should be selected on Form 1040. Since the foreign spouse is being treated as a U.S. tax resident, their worldwide income must be included, and any applicable deductions or credits should be claimed.

To formally elect to treat the foreign spouse as a U.S. tax resident, a statement must be attached to the tax return. This statement should include both spouses’ names and taxpayer identification numbers, a declaration that they are making the election under Internal Revenue Code Section 6013(g), and a statement that the foreign spouse was a nonresident at the beginning of the tax year but is electing to be treated as a resident for the entire year. If this is the first time filing jointly, Form W-7 should also be included if the foreign spouse does not yet have an ITIN.

Filing Extension Considerations

If more time is needed to gather documentation, determine the best filing strategy, or obtain an ITIN, taxpayers can request an extension by filing Form 4868. This grants an automatic six-month extension to submit the return. However, this extension only applies to filing the tax return—it does not extend the deadline for paying any taxes owed. Interest and penalties will accrue on any unpaid balance after the original filing deadline, typically April 15.

For couples living outside the U.S., an automatic two-month extension moves the due date to June 15. If more time is needed beyond that, Form 4868 can be filed to extend the deadline further to October 15. Estimated tax payments should still be made by the original deadline to avoid underpayment penalties.