Can You File Married Filing Jointly on Form 1040-NR?

Form 1040-NR is the tax form for non-U.S. residents with U.S. source income. The available filing statuses are limited, and a couple cannot file a joint return if either spouse was a nonresident alien during the tax year. This rule often means the U.S. citizen or resident spouse must file as married filing separately, which results in higher tax rates and more limited deductions. However, the tax code provides specific exceptions that permit a married couple with a nonresident alien spouse to file a joint return.

Eligibility for Filing a Joint Return

A couple can file a joint return if one spouse is a nonresident alien by electing to treat that spouse as a U.S. resident for tax purposes. This is done through the Internal Revenue Code (IRC) Section 6013(g) election. To qualify, one spouse must be a nonresident alien and the other a U.S. citizen or resident at the end of the tax year. The couple must also be married at the close of the tax year.

The IRC Section 6013(h) election addresses a “dual-status” alien, who becomes a U.S. resident during the year. The individual must be married to a U.S. citizen or resident at year-end, and both spouses must consent. This choice also applies if both spouses were nonresidents at the start of the year and both become residents by year-end.

The Section 6013(g) election remains in effect for all future tax years unless terminated. In contrast, the Section 6013(h) election is a one-time choice valid only for the year the spouse becomes a resident. For both elections, the decision to be treated as a resident is for income tax purposes only and does not alter a person’s immigration status. It also does not make the individual a resident for other tax purposes, like filing an FBAR (Foreign Bank and Financial Accounts Report), which has separate rules.

Consequences of the Election

Making an election to be treated as a U.S. resident has major tax consequences, primarily regarding income. Once the election is in effect, both spouses are taxed on their combined worldwide income for the entire tax year. This means all income, regardless of where it was earned, must be reported on their U.S. tax return. For example, if the nonresident spouse earns a salary from a job in their home country, that income becomes subject to U.S. taxation.

This is different from the standard rules for nonresident aliens, who are taxed only on their U.S. source income. By making the election, the couple also gives up any U.S. tax treaty benefits that would otherwise apply. In exchange, the couple can use the married filing jointly tax brackets and claim the standard deduction, which is unavailable to those filing Form 1040-NR.

The Section 6013(g) election is binding for all subsequent tax years unless terminated. Termination can occur if either spouse revokes it in writing, upon the death of a spouse, or through legal separation or divorce. The IRS can also terminate the election if the couple fails to keep adequate financial records. If the election is terminated, neither spouse can make it again in any future tax year.

How to Make the Election

To make the election, a couple must prepare a specific statement and attach it to their tax return. They do not file Form 1040-NR. Instead, the election requires them to file a joint return using Form 1040 or Form 1040-SR.

For the first year the election is in effect, the couple must attach a signed statement to their joint Form 1040. This statement must declare the choice is being made under either Section 6013(g) or 6013(h). It must also contain the full name, address, and taxpayer identification number for both spouses, and be signed and dated by both.

This statement is only required for the first year. While the couple must file a joint return in the first year the election is made, they may file either jointly or separately in subsequent years. In either case, the spouse is still considered a U.S. resident and must report worldwide income. The election can be made with an original return or by filing an amended joint return on Form 1040-X, generally within three years of the original filing date. The IRS has updated Form 1040 to include a checkbox where taxpayers indicate if they are filing under this election.