Married Couples Who Live Together Should File Married
Married couples who live together have the option to choose the "Married Filing Jointly" and the "Married Filing Separately" filing status on the tax return. For foreign national spouses in the U.S. who do not have a valid Social Security number, the Internal Revenue Service allows them to file taxes using a Tax Payor ID Number.
Head of Household is Not Available to Married Couples Living Together
Married couples who live together in the United States are not eligible to select the "Head of Household" filing option. Despite this prohibition, sometimes tax preparers select the "Head of Household" filing option in order to improperly request a larger tax refund from the U.S. government. While in the short run, the couple financially benefit from the larger tax return than they should have received. It can have disastrous effect on the later visa application or adjustment of status application.
Tax Returns are Required for the Spouse's Residency Application
The petitioning spouse is required to provide the tax return with the visa application or the application for adjustment of status. The adjudicator deciding the case will review the tax return for the filing status. When the immigration officer sees the filing status of Head of Household is selected by a petitioning spouse, it informs the immigration officer that the spouses did not actually live together during the last 6 months of the tax year. This may be understandable when the immigrating spouse is still waiting in the home country for a consulate interview. However, it is not allowed for married couples who were living together in the U.S. during that time.
Amending the Tax Return
For the immigration process, the Petitioning spouse has the burden to prove the marriage is real and the spouses plan to share a future. Filing Head of Household without good reason provides evidence that the marriage is not real thereby leading to denials and delays. In some cases, the adjudicator will allow the Petitioner to amend the return and in some cases, an adjudicator can deny a marriage case. Whenever I see one of these improperly prepared tax returns, I require the petitioning spouse to amend the return. Often tax preparers are resistant to amending the improper return for no charge and there will be tax owed to the Internal Revenue Service because of an overpayment of the refund.
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