I am an international student on F-1 Visa and I have been in US for more than 5 years.
My wife is with me on F-2 visa and she has been here for almost 4 years.
I have been told by the school that I am considered as a resident alien for tax purposes. My wife does not do any kind of work, but I am wondering if she is also should be considered as Resident alien. She does not have SSN as well.
If she is a resident alien, can we file taxes jointly? Should we apply for ITIN.
If she is not a resident alien, can I claim here as a dependent?
There is no immigration law on this subject. It is a tax question which you should address with an accountant.
The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.
I agree with Mr. Berman that this is really a tax question, rather than an immigration question. But there are a few immigration-tax attorneys; I am one. So I will answer your questions.
You are a tax resident of the US and a tax resident of the state where you live. Your wife becomes a US tax resident when she has been physically present FOR ANY PORTION of five calendar years in F-1 status. Example: if she entered the US to begin her studies in December of 2011, then she is considered to have been in the US for all of 2011 for purposes of counting her maximum of four years as a tax nonresident.
You have the right to claim your wife as a dependent on your tax return; this may (probably does) have the affect of reducing your total tax liability for the year. When you claim her as a dependent, you are making her a tax resident which means that she is taxed on her worldwide income (just like you). If she has no worldwide income, then there is no disadvantage to claiming her as your dependent. If you cannot get her an SSN, then file with the ITIN. Though it seems easy, you still need to be careful: there may be negative consequences in the home country or as a result of a tax treaty if you acquires US tax residency. It may be worthwhile to have a consultation with an attorney who understands both immigration and cross-border tax issues.
Your school is correct that, at this point, you are a resident and need to file with a 1040 or 1040EZ.
In general, you wife should be able to file as a non-resident (Form 1040NR) as she has not reached the 5-year limit for F visas. If she files as a non-resident, you would both file as married, filing separate. She can elect to file as a resident with you. The advantage is that you would be able to file a joint return, the disadvantage is that she would be subject to tax on her worldwide income just as residents are. If she is going the non-resident route, she should file Form 8843 to notify the IRS of her status.
Information provided in this forum is for generalized discussion proposes and should not be considered legal advice. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS INTERACTION. While claims or statements made in communications on this forum are believed to be reasonably accurate at the time they are made, no warranty is made or implied as to their accuracy or completeness and such statements may not be relied upon, may not be used for tax or other filings, and may not be relied upon for relief from any interest or penalties.
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