Married to Illegal Immigrant - Should We File Jointly or Separately

[civma]

I am a resident just got married to an illegal immigrant. She works and paid in cash so basically no w2 or 1099...
1)Should I file my tax return as "married jointly" or "married filing separately"?

2)Can we actually declare that she doesn't have income at all so I can get a refund? - by filing married and be the only one making money

3)Would this be an issue with USCIS when I file my petition to him? - like be questioned why i filed separately?(if i file separately) or be questioned regarding her income by immigration consul?

[jk]

I don't have your answers but actually a few question:

can an illegal immigrant legally get married?

what is your spouse going to use for a social security number?

I just have to say, I really like this thread. First, you have an illegal immigrant. Then, they are working illegally under the table. Then, you are actually considering committing tax fraud by denying she even earned money. and on top of that, you want to continue that fraud by claiming married with no income for her so you can get a bigger refund.

Wow, what a great country.

[divemedic]

LOL- the only think making this situation MORE illegal would be if she were earning her illegal money as a prostitute or a drug dealer

[llworking]

I don't have your answers but actually a few question:

can an illegal immigrant legally get married?

Yes

what is your spouse going to use for a social security number?

The spouse would apply for an ITIN number. The IRS encourages illegal immigrants to obtain ITIN numbers, file their tax returns, and pay their taxes. The IRS does not share the information with immigration.

I just have to say, I really like this thread. First, you have an illegal immigrant. Then, they are working illegally under the table. Then, you are actually considering committing tax fraud by denying she even earned money. and on top of that, you want to continue that fraud by claiming married with no income for her so you can get a bigger refund.

Wow, what a great country.

[/quote]

I agree that attempting to claim that she had no earnings would be fraud. However, its completely legal for him to file a joint return with her and receive a larger refund. However, they would not be eligible for EIC.

[Bubba Jimmy]

1)Should I file my tax return as "married jointly" or "married filing separately"?

Those are your choices, and it's really up to you. You will need to follow the legal requirements for which ever filing status you choose. You can file MFJ if you apply for an ITIN for your wife with form W-7 to be filed with your tax return. The IRS will assign her a number that will allow her to comply with the legal requirement to file a tax return

2)Can we actually declare that she doesn't have income at all so I can get a refund? - by filing married and be the only one making money

You are going to be filing married regardless. If you file MFS you will not have to report your wife's income on your tax return. You would just report your own income. If you file MFJ then you are required to report all income for both spouses.

3)Would this be an issue with USCIS when I file my petition to him? - like be questioned why i filed separately?(if i file separately) or be questioned regarding her income by immigration consul?

USCIS usually asks for copies of your tax returns. They want to see that both parties have complied with the law. Every person has the right to file seperately. If your wife has a legal requirement to file, because she had enough income to require her to file, that may be an issue for them.

Why not file jointly, report all the income, take all the deductions and credits you're entitled to, and pay your legal tax? That's what we are all required to do. People trying to scam the system are exactly the people USCIS is looking to identify.

[Chippewa]

A husband and wife may file a joint return even though one spouse had no income or deductions (regulation 1.6013-1) but only if;
1. their tax years begin on the same date,
2. they are not legally seperated under a decree of divorce or seperate maintenance on the last day of the tax year, AND
3. NEITHER IS A NONRESIDENT ALIEN at ANYTIME during the year.

However, a U.S. citizen or resident and his or her nonresident alien spouse can elect to file a joint return IF THEY AGREE to be taxed on their WORLD- WIDE INCOME and supply all necessary books and records and other information pertinent to the determination of tax liability (Code section 6013(g)). Further, a one time election to file a joint return is available in the year in which a nonresident alien spouse becomes a resident (code section 6013(h)).

This was the case as of the 07 tax return year, and I have not had to look at this situation since last year. Anyone know of any changes for the 08 tax year?

Also of note is that the filing of a false tax return is a crime and could impact getting residency or citizenship.

[Bubba Jimmy]

IRS Publication 17, page 21, bottom of right column:

Nonresident alien or dual-status alien. A joint return generally cannot be filed if either spouse is a nonresident alien at any time during the tax year. However, if one spouse was a nonresident alien or dual-status alien who was married to a U.S. citizen or resident alien at the end of the year, the spouses can choose to file a joint return. If you do file a joint return, you and your spouse are both treated as U.S. residents for the entire tax year. For information on this choice, see chapter 1 of Publication 519.

[llworking]

A husband and wife may file a joint return even though one spouse had no income or deductions (regulation 1.6013-1) but only if;
1. their tax years begin on the same date,
2. they are not legally seperated under a decree of divorce or seperate maintenance on the last day of the tax year, AND
3. NEITHER IS A NONRESIDENT ALIEN at ANYTIME during the year.

However, a U.S. citizen or resident and his or her nonresident alien spouse can elect to file a joint return IF THEY AGREE to be taxed on their WORLD- WIDE INCOME and supply all necessary books and records and other information pertinent to the determination of tax liability (Code section 6013(g)). Further, a one time election to file a joint return is available in the year in which a nonresident alien spouse becomes a resident (code section 6013(h)).

This was the case as of the 07 tax return year, and I have not had to look at this situation since last year. Anyone know of any changes for the 08 tax year?

Also of note is that the filing of a false tax return is a crime and could impact getting residency or citizenship.

The IRS defines a resident alien differently than immigration does. Under the tax code a resident alien is someone that has resided in the US for at least 260 days of the calendar year, whether they are residing here legally or illegally.

Non-resident alien refers to a spouse that does not live in the US, Mexico or Canada

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