One of the most common questions among married U.S. taxpayers with foreign spouses is whether they can file a joint tax return. The short answer is: yes, in many cases, you can file a joint return even if your spouse is a nonresident alien—but only if specific conditions are met. Electing to file jointly can offer significant tax benefits, including access to a higher standard deduction, favorable tax brackets, and eligibility for credits that may not be available with other filing statuses.
This detailed blog explores how joint filing with a nonresident alien spouse works, the requirements, implications, and tax strategies for couples with international circumstances.
1. Understanding Nonresident Alien Status
A nonresident alien is a person who is not a U.S. citizen and does not meet either the Green Card test or the Substantial Presence test for U.S. tax residency. Many foreign nationals on temporary visas (e.g., H1B dependents, students, or spouses living abroad) are classified as nonresident aliens for tax purposes.
Nonresident aliens typically file their own tax returns using Form 1040-NR and are not required to report worldwide income—only U.S.-sourced income. However, if a U.S. citizen or resident alien marries a nonresident alien, they have options when it comes to filing status.
2. Can You File a Joint Return with a Nonresident Alien?
Yes, you may elect to treat your nonresident alien spouse as a U.S. tax resident and file a joint return. This is allowed under IRC Section 6013(g). By making this election, your spouse is treated as a resident alien for tax purposes for the entire year, and both of you must report your worldwide income on the joint tax return.
Key Requirement: You must be married as of December 31 of the tax year and file Form 1040 jointly. You cannot make this election if you file separately or if your spouse does not agree to the terms of the election.
3. How to Make the Election to File Jointly
To elect to file jointly with a nonresident alien spouse, you must include a written statement with your tax return in the first year you make the election. The statement should include:
- A declaration that both spouses choose to be treated as U.S. residents for the entire tax year.
- The full name, address, and Social Security Number (SSN) or Individual Taxpayer Identification Number (ITIN) of each spouse.
- Both spouses must sign and date the statement.
Once the election is made, it remains in effect for all future years unless revoked. If your spouse does not yet have an SSN or ITIN, you must apply for one using Form W-7 and attach it with the return.
4. Benefits of Filing a Joint Return with a Nonresident Alien Spouse
Choosing to file jointly may offer multiple advantages:
- Higher Standard Deduction: $29,200 for Married Filing Jointly in 2024 (vs. $14,600 for Single or Head of Household).
- Access to Lower Tax Rates: Joint filers benefit from more favorable tax brackets.
- Eligibility for Tax Credits: Earned Income Tax Credit (EITC), Child Tax Credit (CTC), American Opportunity Credit (AOC), and others may be available.
- Simplified filing: Only one return is submitted instead of two separate returns (one being a 1040-NR).
5. Tax Implications of Treating a Nonresident Alien as a U.S. Resident
While the benefits are appealing, there are also important tax implications:
- You must report worldwide income for both spouses—this includes foreign wages, rental income, business profits, and interest.
- Foreign income may be subject to U.S. taxation, although foreign tax credits (Form 1116) or exclusions (Form 2555) may mitigate double taxation.
- You may have additional reporting obligations, such as:
- FBAR (FinCEN Form 114): Required if foreign bank accounts exceed $10,000.
- Form 8938: Report foreign financial assets if thresholds are met.
These requirements can be complex and may increase your compliance burden, especially if your spouse has significant income or assets abroad.
6. What If You Choose Not to File Jointly?
If you do not elect to treat your spouse as a U.S. resident, your only other option is to file as Married Filing Separately. This comes with several limitations:
- You lose access to the standard deduction (unless you itemize).
- You are not eligible for the EITC or certain education credits.
- Your tax rates may be higher.
- Your spouse is treated separately for tax purposes and files using Form 1040-NR (if they have U.S. income).
However, some couples prefer this route if their spouse has significant foreign income that would be taxable if included on a joint return.
7. Applying for an ITIN for Your Nonresident Spouse
If your spouse does not qualify for an SSN, you must apply for an ITIN (Individual Taxpayer Identification Number) using Form W-7. This form must be submitted with your tax return along with supporting documentation, such as a passport copy and a signed joint election statement.
You cannot electronically file the return the first year you apply for an ITIN—you must mail the entire package to the IRS.
8. Changing Your Election in Future Years
Once you make the election to treat your nonresident spouse as a U.S. resident, it stays in place unless:
- Either spouse revokes the election in writing.
- One spouse dies.
- You become legally separated or divorced.
- The IRS terminates the election due to misrepresentation or abuse.
If revoked, you cannot make the election again without IRS approval.
9. Special Scenarios and Considerations
Newly Married in the Tax Year
If you got married on December 31 or earlier, the IRS considers you married for the entire year. This means you are eligible to file jointly, even if the marriage occurred late in the year.
Spouse Residing Abroad
Your spouse does not have to be physically present in the U.S. to file jointly. However, both spouses must agree to the election, and the foreign spouse must report global income on the joint return.
Dual-Status Aliens
If your spouse was a nonresident for part of the year and a resident for the other part, they are considered a dual-status alien. In some cases, you can still make the joint election for the full year, but additional forms may be required.
10. Conclusion
Yes, you can file a joint return with your nonresident alien spouse by electing to treat them as a U.S. resident for tax purposes. While this decision can unlock valuable tax benefits like a higher standard deduction and access to tax credits, it also comes with expanded responsibilities, including reporting worldwide income and foreign financial assets.
If your spouse has limited or no foreign income, the benefits of filing jointly usually outweigh the drawbacks. However, if they have significant income or complex foreign assets, consult a tax professional to evaluate the potential consequences.
Understanding and following IRS rules when filing jointly with a nonresident alien spouse can help you reduce your tax liability while remaining compliant with U.S. tax laws.
