Filing taxes can be a confusing and time-consuming process, particularly when you plan to apply for a marriage-based green card. We asked independent immigration attorneys in the Boundless network to weigh in on some of the most frequently asked questions about filing taxes when applying for a marriage green card.
1. How should I file my taxes? Married or separately?
If you're married on or before the last day of the tax year (Dec. 31), you should generally file jointly. Immigration considers tax filing status as part of your overall evidence that you have a valid marriage.
To file separately there has to be a good tax reason to do so. If a couple is unsure about how to file, it is best they consult a tax professional to determine the proper way to file. That way, if something comes up during the green card interview, they can respond that their tax professional advised them to file that way.
2. What if my spouse doesn’t have a Social Security Number (SSN) yet?
Your spouse can still file a joint Federal return after obtaining an Individual Taxpayer Identification Number (ITIN). They can apply for an ITIN using Form W-7, which should then be submitted with the return. It’s generally a good idea to speak with a reputable tax professional to explore your options.
3. If both spouses are legal permanent residents and they haven’t been working, do they need to file jointly?
A joint return can still be filed even if one spouse didn't work, as long as they were married on the last day of the tax year. Note that green card holders are required to report worldwide income too, even if unemployed in the United States.
4. Do I file my taxes to file the green card sooner, or do we try to get married and file jointly to have the benefits?
This is a personal choice. If someone is out-of-status or their nonimmigrant status is about to expire, then filing for the green card would take priority. If a couple gets married at the beginning of a new calendar year, the previous year's taxes are going to be filed as "single" so it shouldn’t matter when they're filed. If a couple gets married in November or December, taxes can't be filed until January at earliest so it depends on how fast they can prepare both their immigration and tax documents.
5. I was unemployed for part of the time on my tax return. Will that affect my sponsorship?
U.S. Citizenship and Immigration Services (USCIS) is more concerned with how much a sponsor earned and how much they are currently earning than the time spent making that money. They are looking for a qualifying financial trend, and a short term of unemployment is only a snapshot of the bigger picture. As long as the sponsor’s most recent year's tax return can show that they met the minimum required income, a period of unemployment shouldn’t be a problem. However, it is possible an RFE (Request for Evidence) will be issued if USCIS determines that a joint sponsor is needed.
6. Who could qualify as a dependent — as it extends to multi-generational homes?
It's best to consult with your tax professional before claiming household members (or others) as a dependent on your tax return. If you mistakenly claim a dependent you could be subject to large tax consequences.
7. My spouse hasn’t filed because of an extension or has past due taxes, can they still sponsor me?
In order to file Form I-864, the sponsoring spouse needs to (1) file their federal tax return, or (2) if it is after April 15, they can show that they've been issued an extension. The spouse seeking a green card will have to wait to file Form I-485 until the sponsor can prove option 1 or option 2. Alternatively, the sponsoring spouse can provide an explanation as to why they were not required (by law) to file federal tax returns for last year.
8. I have past due taxes — what do I do as the sponsor?
Enroll in a payment plan with the IRS and make timely payments. Learn more about applying for a payment plan here.
