If, at the end of your tax year, you are married and one spouse is a U.S. citizen or a U.S. resident within the meaning of Internal Revenue Code (IRC) section 7701(b)(1)(A) and the other is not, you can choose to treat the nonresident spouse as a U.S. resident for tax purposes. This includes situations in which one of you was not a U.S. resident at the beginning of the tax year but was at the end of the year, and the other was not a U.S. resident at the end of the year.

If you and your spouse do not choose to treat the nonresident spouse as a U.S. resident, 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 spouse. For more information, see Head of Household and Publication 501, Dependents, 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 spouse may still be treated as a nonresident. Refer to Individuals 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 their 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, who is neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A). S and T make the choice to treat T as a U.S. resident 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 a U.S. resident within the meaning of IRC section 7701(b)(1)(A), 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 on the last day of the tax year one spouse was neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A) and the other spouse was, 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 U.S. resident does not apply to any later tax year if neither of you is a U.S. citizen or a U.S. resident within the meaning of IRC section 7701(b)(1)(A) at any time during the later tax year.

Example:

D was a U.S. resident within the meaning of IRC section 7701(b)(1)(A) on December 31, 2020, and married to E, who was neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A). They chose to treat E as a U.S. resident and filed a joint 2020 income tax return. Because D left the United States on January 10, 2021, and did not return at all during the year, D was not a U.S. resident for tax year 2021. E remained a nonresident for that year. Since neither D nor E was a U.S. resident at any time during 2021, their choice to treat E as a U.S. resident is suspended for that year. For 2021, both are treated as nonresidents. If D becomes a U.S. resident gain in 2022, their choice to treat E as a U.S. resident is no longer suspended, and they must file either joint or separate income tax returns reporting their worldwide income for tax year 2022.

Ending the Choice

Once made, the choice to be treated as a U.S. resident 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 neither a U.S. citizen nor a U.S. resident within the meaning of IRC section 7701(b)(1)(A) 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, they 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.