Nonresident Alien Spouse

 

If, at the end of your tax year, you are married and one spouse is a U.S. citizen or resident alien and the other is a nonresident alien, you can choose to treat the nonresident as a U.S. resident. This includes situations in which one of you is a nonresident alien at the beginning of the tax year, but a resident alien at the end of the year, and the other is a nonresident alien at the end of the year.

If you and your nonresident alien spouse do not choose to treat your nonresident alien spouse as a U.S. resident alien, you may be able to use head of household filing status. To use this status, you must pay more than half the cost of maintaining a household for certain dependents or relatives other than your nonresident alien spouse. For more information, see Head of Household and Publication 501, Exemptions, Standard Deduction, and Filing Information.

Election to File Joint Return

If you make this choice, the following rules apply:

  • You and your spouse are treated, for federal income tax purposes, as U.S residents for all tax years that the choice is in effect. However, for Social Security and Medicare tax withholding purposes, the nonresident alien may still be treated as a nonresident alien. Refer to Aliens Employed in the U.S. – Social Security Taxes.
  • You must file a joint income tax return for the year you make the choice (but you and your spouse can file joint or separate returns in later years).
  • Each spouse must report his or her entire worldwide income for the year you make the choice and for all later years, unless the choice is ended or suspended.
  • Generally, neither you nor your spouse can claim tax treaty benefits as a resident of a foreign country for a tax year for which the choice is in effect. However, the exception to the saving clause of a tax treaty might allow a tax treaty benefit on certain specified income.

Example:

S has been a U.S. citizen for many years and is married to T, a nonresident alien. S and T make the choice to treat T as a resident alien by attaching a statement to their joint return. S and T must report their worldwide income for the year they make the choice and for all later years, unless the choice is ended or suspended. Although S and T must file a joint return for the year they make the choice, so long as one spouse is a U.S. citizen or resident, they can file either joint or separate returns for later years.    

CAUTION! If you file a joint return under this provision, the special instructions and restrictions for dual-status taxpayers do not apply to you.

How to Make the Choice

Attach a statement, signed by both spouses, to your joint return for the first tax year for which the choice applies. It should contain the following information:

  1. A declaration that one spouse was a nonresident alien and the other spouse a U.S. citizen or resident alien on the last day of the tax year, and that you choose to be treated as U.S. residents for the entire tax year
  2. The name, address, and identification number of each spouse. (If one spouse died, include the name and address of the person making the choice for the deceased spouse.)

Amended Return

You generally make this choice when you file your joint return. However, you can also make the choice by filing a joint amended return on Form 1040X, Amended U.S. Individual Income Tax Return within 3 years from the date you filed your original U.S. income tax return or 2 years from the date you paid your income tax for that year, whichever is later. If you make the choice with an amended return, you and your spouse must also amend any returns that you may have filed after the year for which you made the choice.

Suspending the Choice

The choice to be treated as a resident alien does not apply to any later tax year if neither of you is a U.S. citizen or resident alien at any time during the later tax year.

Example:

D was a resident alien on December 31, 2018, and married to E, a nonresident alien. They chose to treat E as a resident alien and filed a joint 2018 income tax return. Because D left the United States on January 10, 2019, and did not return at all during the year, he was a nonresident alien for tax year 2019. E remained a nonresident alien for that year. Since neither D nor E was a resident alien at any time during 2019, their choice to treat E as a resident alien is suspended for that year. For 2019, both are treated as nonresident aliens. If D becomes a resident alien again in 2020, their choice to treat E as a resident alien is no longer suspended, and they must file either joint or separate income tax returns reporting their worldwide income for tax year 2020.

Ending the Choice

Once made, the choice to be treated as a U.S. resident alien for federal income tax and withholding purposes applies to all later years unless suspended (as explained above) or ended in one of the ways shown below:

  • Revocation by either spouse
  • Death of either spouse
  • Legal separation
  • Inadequate records

For a more detailed explanation of these items, refer to the section titled "Ending the Choice" in Chapter 1 of Publication 519, U.S. Tax Guide for Aliens.

CAUTION! If the choice is ended for any of the reasons listed above, neither spouse can make this choice in any later tax year, even if married to a different individual – it is a once-in-a-lifetime choice.

Social Security Number

If your spouse is a nonresident alien and you file a joint or separate return, your spouse must have either a Social Security Number (SSN) or an Individual Taxpayer Identification Number (ITIN). To get an SSN for your spouse, apply at a social security office or U.S. consulate. You must complete Form SS-5. You must also provide original or certified copies of documents to verify your spouse's age, identity, and citizenship. If your spouse is not eligible to get an SSN, he or she can file Form W-7 with the IRS to apply for an ITIN. Refer to Taxpayer Identification Numbers (TIN) for more information.

References/Related Topics

 

Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury Regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury Regulations, or other official tax guidance, visit the Tax Code, Regulations, and Official Guidance page. To access any Tax Court case opinions issued after September 24, 1995, visit the Opinions Search page of the United States Tax Court.